ORDER
Doddakale Gowda, J.
1. In this petition under Section 438 Cr.P.C., petitioner has sought to admit him to anticipatory bail in Crime No. RC.2/87/SIU/II/SIC/CBI registered for offences under Sections 302 and 201 of I.P.C. in connection with the alleged murder of an Advocate by name Abdul Rasheed of Kerala State.
2. The circumstances under which petition is filed for grant of anticipatory bail run thus :-
Sriyuths P. Sadashivan, Mariyappa, K.R. Srinivasan, Charian and Smt. Sadamba Rao were the Trustees of an Educational Society known as ‘Javahar Bharati Education Trust’ in Bangalore, of which, Sri P. Sadashivan was the founder-trustee. By obtaining sanction of the Government of Karnataka, Trust started a B.Ed, College, known as ‘Sanjay Gandhi College of Education’ in Bangalore. Smt. Rathna was its Principal. Owing to some differences Sriyuths Mariyappa and K.R. Srinivasan have fallen out and it appears there are constant bickerings amongst them.
3. Sri P. Sadashivan established another Trust by name Visveswaraiah Trust’ with the prime object of establishing a Medical College at Kolar. It appears, the Council of Ministers decided to grant permission to start the Medical College to the said Trust at Kolar. Sri C. Perumal, the then Chief Whip of the Party, and two others were its Trustees ; on the day of Gandhi Jayanthi there was an inauguration of 8 Medical College by name ‘Mahatma Gandhi Medical College’ Kolar, with the blessings of the Chief Minister, Sri Ramakrishna Hegde ; the Council of Ministers in its emergency meeting held on 7-10-1985 decided to substitute the name of ‘Devaraj Urs Trust’ for Visweswaraiah Trust’ at the instance of the petitioner, one of the Council of Ministers. It was alleged that the Assistant Commissioner, Kolar, confiscated about 23 acres of land purchased by Visweswaraiah Trust for the purpose of establishing the Medical College, and the validity of said order is pending adjudication in a Writ Petition before this Court.
4. Incidentally, it is necessary to mention that the petitioner is the Chairman of Devaraj Urs Trust. Averments are that the petitioner, who was instrumental to deprive Sri Sadashivan of the benefit of starting a Medical College, instructed concerned High Grounds Police to give support to rivals of P. Sadashivan ; the difference amongst Trustees of ‘Javahar Bharati Education Trust’ has led to various proceedings. Reference in this connection has been made to the original suit filed by Sri P. Sadashivan against Sriyuths Mariyappa and K.R. Srinivasan restraining them from interfering with the peaceful possession and administration of the B.Ed., College at Vasanthanagar ; despite injunction order, there are constant troubles as his rivals had the patronage of the Police of the High Grounds with the connivance of the petitioner, the then Home Minister in the State.
5. In August 1987, Smt. Rathna, the then Principal of the College was removed and one Seetharama Iyengar was appointed in her place. Original suit i.e. O.S.3203/1987 was filed on the file of the Additional City Civil Judge, Bangalore for permanent injunction and interim order obtained on 14-7-1987 has been subsequently made absolute on 11-8-1987.
6. The case of the prosecution was that Abdul Rasheed as an Advocate fought for the cause of P. Sadashivan, defended and tried to secure the police help for effective implementation of the injunction order. In that process, it appears, he had approached the Sub-Inspector of Police, High Grounds Police Station, with the certified copy of the injunction order to render all possible help to protect the interests of Sri P. Sadashivan. Instead of getting assistance, it appears, he received a worst treatment ‘kicks and blows’ at the instance of Sriyuths Mariyappa and K. R. Srinivasan, who were then present at the Police Station.
7. Smt. Rathna, Ex.Principal of the College had filed a Complaint on 14-8-1987 before the High Grounds Police Station against deceased Rasheed alleging commission of offences under Sections 452 and 506 IPC. Sri Uttappa, PSI, of High Grounds Police Station (A-1) registered a case in Crime No. 36071987 against the deceased. On the same day, i.e., 14-8-1987, it appears, deceased had gone to the College to meet Smt. Rathna. At that juncture, two Constables by name, Mohan and Prasanna, who were in plain clothes pounced on the deceased, manhandled and assaulted him and took him to the Police Station to cause production before A-1. Thereafter, A-1 arrested and produced the deceased Rasheed before the Court of Metropolitan Magistrate, II Court, Bangalore, with an application for remand to Judicial Custody. Deceased Rasheed appears to have complained to the learned Magistrate of his torture and ill-treatment by the Police. However, at the instance of Sri P. Sadashivan, he was got released through an Advocate by name, Venkatappa, with a direction to appear before the Court on 17-8-1987. Even after release, it appears, he was under surveillance by the Police of the High Grounds Police Station. The suit case containing his documents and cheque books, diaries, etc., were taken away by the High Grounds Police. Deceased Rasheed has submitted a Memorandum complaining ‘inhuman and brutal treatment’ of the police and had requested the President of the Bar Association, Bangalore, to awake and save him from torture, tyranny, harassment, the prestige of an Advocate and fraternity of Lawyers.
8. The prosecution case is that on 16-8-1987 Sriyuths M. Nagaraju – HC.1278, A. Mohan, Police Constable and Prasanna – PC.6388, who are arrayed as A-3, A-5 and A-6, shifted deceased Rasheed from Room No. 404 of Sandhya Lodge to Room No. 11 of Satyaprakash Lodge, belonging to Bhoja Gudia and Sudhakar (A-11 and A-12). The deceased was detained by the Police in Room No. 11 on the night of 16-8-1987. Those officials securing 4 other persons, by name Govinda Prasad, K. Pandyan, Shivakumar, and Ranganath (A.7, A.8, A.9 and A.10) killed the deceased in Room No. 11 of Satyaprakash Lodge. After the deceased was done to death they carried the deadbody in a car and threw it into a bush by the side of Railway track in between Danishpet and Lokapura Railway Stations in Salem District of Tamil Nadu, within the limits of Salem Railway Police Station.
9. For non-appearance on 17-8-1987, the Magistrate had issued a non-bailable warrant against Rasheed in Crime No. 360/1987. On 18-8-1987 the dead body of deceased Rasheed was spotted by the Railway Gangman of Salem Railway Station with the result the Railway Police, Salem, registered a case of unnatural death in Crime No. 417/1987. The dead body and the belongings have been identified by his brother Abdul Saleem.
10. In the meanwhile, Sri Venkatappa, learned Advocate of the deceased had filed a petition under Section 97 of Cr.P.C., before the Metropolitan Magistrate Court (registered as Crl.Mis.69/1987) for issue of a search warrant to all the concerned Police Officers for production of Rasheed. On 26 8-1987 Police submitted a report before the Magistrate stating that the deceased has left Sandhya Lodge on 16-8-1987 and his whereabouts were not known since then. Habeas Corpus petition No. 79/1987 filed before this Court was of no avail.
11. The Complaint lodged by Abdul Saleem for the commission of murder was transmitted to the Special D.I.G. of Police and after making enquiries, a case was registered in Crime No. 401/1987 against the High Grounds Police Station under Sections 302 and 201 of IPC. Later on Mr. Mahadevappa, Special S.P., wrote to the concerned Circle Inspector of Police stating that he has not implicated the High Grounds Police as accused in his report and F.I.R. sent earlier may be got rectified showing accused as unknown.
12. On requisition by the Government of Karnataka, to spare the services of the CBI Police to investigate the cause and culprits, the CBI have taken up the investigation and registered a case in Crime No. 2/87/SIV/ll/SIC/CBI, under Sections 302 and 201 of IPC.
In the course of the investigation, CBI has arrested 16 persons as Accused including the Deputy Commissioner of Police, Sub-Inspector of Police – Uttappa, Assistant Sub-Inspector – Nair, two Head Constables and two other Constables of High Grounds Police Station. They have also arrested the Proprietors of Satyaprakash Lodge, who have been arrayed as A-11 and A-12, and the investigation is in progress.
13. It is at this stage, the petitioner approached VI Additional Sessions Judge, Bangalore City, for grant of anticipatory bail under Section 438 Cr.P.C. The learned Sessions Judge, after hearing the prosecution and the petitioner has declined to grant anticipatory bail as per his order dated 7th of May 1988 passed in Criminal Misc. No. 464 of 1988. Hence, this petition.
14. The learned Sessions Judge after referring to the various decisions cited at the Bar and on consideration of relevant material placed on record has declined to admit the petitioner on bail. Reasons assigned for refusal are :-
(i) As it was a case of “extreme sensitive nature with vide social and political repercussions, considered view” was that it was “not advisable at this stage and in this proceeding to discuss available matter on record.”
(ii) No basis for the petitioner to apprehend that he is likely to be falsely implicated.
(iii) Presentation of the application under Section 438 of Cr.P.C. itself amounted to “a tacit declaration on his part of his non-co-operative attitude towards the investigating agency.”
(iv) Not possible to hold that the investigation was tainted with extraneous considerations.
15. The exercise of power under Section 438 of Cr.P.C. by this Court is neither an appellate nor revisional jurisdiction but concurrent. Hence, this Court will have to examine the merits of the relief dehors the reasoning of the learned Sessions Judge and additional factors on which reliance is placed for grant of anticipatory bail.
16. There cannot be inexplorable formula in the matter of grant of bail. In other words, no hard and fast rule can be laid down in discretionary matter like the grant or refusal nor can there be an inflexible principle governing the exercise of discretion except that, discretion should be exercised judiciously having regard to peculiar facts and circumstances of each case. This Court is not expected to conduct a pre-trial of the case and consider the probability of petitioner’s guilt or innocence, but can certainly look into the material available on record for exercise of its power. The fact that offence is a serious one is not by itself a good ground for refusal, if otherwise entitled to. Decision cannot be based on single or stray circumstance, but the cumulative effect of all (totality) circumstances will have to be taken into consideration in arriving at a conclusion.
17. Factors pressed for consideration are :-
(a) The relevant averments in the petition filed before the Sessions Judge read thus :
“4. That the petitioner, who is having several decades of bright political career is a prominent member of Janatha Party which is the ruling party in Karnataka, besides he is the present Home Minister in Karnataka Government. That some rival political parties and some interested political rivals who are inimically disposed against him and interested to bring down the good image and reputation of the Janatha Party Government in Karnataka State and also his own personal image and reputation and to thereby create circumstances to bring down the downfall of the Janatha Government in Karnataka and also his political downfall are feeding the respondent with false information with a view to make them action to false with above case and arrest him and humiliate him to bring about his political down fall and the image of the Janatha Government in Karnataka.
5. That from among other things the above fact is revealed from the fact that the accused persons No. 14 Sri M. Narayanappa and No. 6 Prasanna who are in Custody in the above case complained to the Court on 21-4-1988 that they were being pressurised by the C.B.I. Police to falsely implicate the petitioner and others in the above case.
6. That since then the petitioner is receiving number of telephone threats of his arrest by the C.B.I. in connection with the above case any moment.
8. That since this morning that the petitioner is being informed persistently that the C.B.I. Police have arrested Sri K. Narayan the D.C.P., West Range, Bangalore in connection with the above crime and the next step the C.B.I. would take is to arrest the petitioner.”
(b) In addition, reliance is placed on the news items (i) in Indian Express, dated 8-5-1988 ; and (ii) news item in Prajavani, dated 8-5-1988, which read thus :
(i) “CBI CHARGE :
The CBI has accused Mr. Jalappa of engineering the murder of Rasheed with police help. Mr. Rasheed had the power of attorney from Mr. Sadashivan, who was locked in a bitter struggle with the supporters of Mr. Jalappa for the control of Sanjay Gandhi Memorial Education Trust running a B.Ed., College on Miller Road in the City.
xxx xxx xxx Since Mr. Jalappa's supporters were involved in the struggle for control of the educational institutions, it was widely rumoured that Mr. Jalappa was behind the roughing up of Mr. Rasheed by the police......" (c) Reliance is placed on the statements of A-4 to A-6 given before the Magistrate to the effect that CBI officials are pressurising them to implicate the present petitioner. (d) Subsequent to the order of the learned Sessions Judge, he has resigned and ceased to be the Home Minister. Hence, doubt, if any, about the tampering of evidence is also obviated, and (e) The extension of bail to A-11 and A-12 within whose premises murder was alleged to have taken place. 18. Question for consideration is whether these averments constitute sufficient and good ground to entertain an apprehension that the petitioner is in all probability likely to be arrested warranting exercise of power under Section 438 of the Code? 19. The plea of the petitioner is that persons, who are inimically disposed towards him either politically or otherwise, are embarked upon to victimise fabricate case/s against him to damage his political image and assassinate his character, humiliate and harass him.
Respondents have not categorically denied these averments and a reading of the objection statement gives an impression that it is vague, as rightly characterised by the learned Counsel for the petitioner. The prosecution can adopt an “uncertain stand” (as coined by the learned Sessions Judge), and the Court cannot compel to disclose its stand. By ‘uncertain stand’ the learned Judge probably meant that the prosecution has not taken a definite stand either to admit or deny those averments. But for the limited exercise of power under Section 438, these averments can be taken as not controverted. The learned Sessions Judge was hesitant to accept these averments on the ground that it was not supported by an affidavit and looked as though constrained to act on an unsworn statement. Undisputedly, Criminal Rules of Practice do not contemplate filing of an affidavit in support of such applications. The fact that he belonged to Janatha Party, the ruling party in he State and a Member of the Cabinet as an M.L.A., was not disputed. Even then, the learned Sessions Judge has held thus:
“As regards the further petition averments that his political rivals are bent upon to unseat him from power and subject him to humiliation, is a bald statement and same lacks sufficient and satisfactory particulars.”
It was not even the case of the petitioner that deceased Rasheed was his political rival nor there was any Civil disputes between the petitioner and the deceased Rasheed. The finding, which reads thus:
“It is not the case of either party that the deceased belonged to any political party. Nor is it their case that there was any civil dispute between the deceased and the petitioner. Therefore, there cannot be any basis for the petitioner to apprehend that he is likely to be falsely implicated.”
clearly demonstrates that the Court-below has not properly comprehended the pleadings. Consequently, misdirected itself and committed serious error or illegality in exercise of its discretionary power. The recommendation of 41st Law Commission, on the basis of which Section 438 was introduced was only to meet such situation.
20. Regarding, news items published in Indian Express and Prajavani, Sri C. Shivappa, learned Counsel for the prosecution, vehemently contended that those News Papers were inadmissible in evidence, and contents, were inadequate and insufficient to form a ‘reasonable belief or to entertain an apprehension that the petitioner would in all probability be arrested, for the commission of non-bailable offences. These news items are subsequent to an order passed by the learned Sessions Judge.
A news item with out further proof through witnesses is of no value. It is at best a second hand secondary evidence vide SAMANTH v. FERNANDEZ, . News item published in News papers of established reputation cannot be brushed aside till they gained sacrosance (proof in required form). Judgments reported in News Papers like Statesmen and Times (reputed News Papers) are cited as precedents before Courts, Market reports in News Papers are relied as evidence in Commercial World. If petitioner has reasonably believed these reports as true, whatever may be the veracity (be it second hand secondary evidence or primary evidence), can the relief be said to be ill-founded?
21. The petitioner, likewise, if apprehends that he is likely to be implicated, as pressurised by respondents vide statements of A-4 to A-6 before the Judicial Magistrate, can it not be said to be a reasonable belief ? No doubt, the learned Sessions Judge has held that those statements are inadmissible under Section 164 of the Cr.P.C. In case/s where an applicant as an ordinary man of prudence not well versed with the admissibility or the legal implication of such statement, seeks relief under Section 438, can it be said to be baseless or unreasonable ? The petitioner’s apprehension was well-founded.
Supreme Court in GURBAKSH SINGH v. STATE OF PUNJAB, has explained the meaning of ‘reasonable belief found in Section 438, thus :
“35…………………The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere ‘fear’ is not ‘belief for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that someone is going to make an accusation against him, in pursuance of which, he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively, because it is then alone that the Court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual’s liberty it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.
Secondly, if an application for anticipatory bail is made to the High Court or the Court of Sessions it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.
Thirdly, the filing of First Information Report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed.
Fourthly, anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested.
Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused………..”
In view of this elucidation viz., ‘reasonable belief should be founded on reasonable grounds, it is unnecessary to refer to the definition of ‘reasonable belief as defined in IPC and other decisions cited in support of his contention.
22. Grant of bail to A-11 and A-12 has nothing to do with the consideration of the claim of the petitioner for grant of anticipatory bail.
23. Reasoning of the learned Sessions Judge to the effect that it is a case of extreme sensitive nature with wide social and political repercussions is not sound, as Courts are expected to deal with cases as they come before them, mindful of the need to keep passions, prejudices, and sensitiveness, out of their decisions.
24. The finding of the learned Sessions Judge that the filing of application under Section 438 Cr.P.C. itself amounts to ‘tacit declaration of non-co-operative attitude’ is an erroneous assumption. Such presumption is neither warranted under law nor from facts and circumstances of this case. More over, during the pendency of this proceeding, petitioner has resigned and ceased to be the Minister.
25. The next contention of the learned Counsel for the petitioner was that there was not even an iota of evidence of incriminating material against him. Hence, even on that count also, he is entitled to anticipatory bail on such terms and conditions as may be imposed by this Court.
This argument is countered by Sri Shivappa contending that investigation is still under progress and unless and until the petitioner is subjected to interrogation, investigation will be scuttled. It was also contended that unless the process of investigation/interrogation as provided under Section 167 of Cr.P.C. is completed, power under Section 438 of the Code cannot be exercised.
In support of his plea, it was submitted on behalf of the petitioner that in F.I.R. dated 3-9-1987, High Grounds Police was mentioned as the ‘Offender’. It was only on 10-9-1987 Sri Mahadevappa, Special S.P. tried to get it clarified or intended corrections to the effect that Accused was “not known”, instead of mentioning the High Grounds Police as Accused. He also submitted in evidence so far collected there was no incriminating materials to implicate him as an Accused and by extending anticipatory bail no injustice or harm would be caused to the prosecution.
I refrain from expressing any opinion on this aspect since the investigation is yet to be completed.
26. The scope and ambit of Section 438 is no longer res-integra. A Constitution Bench of the Supreme Court in Gurbaksh Singh Case, has explained the scope of Section 438 vis-a-vis Sections 437 and 439 with reference to freedom of an individual and presumption of innocence. The ratio of the decision is found at para-31, and it reads thus :
“31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will free from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail can not be granted unless the proposed accusation appears to be actuated by mala fides ; and equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the Court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant’s presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the Court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the Court may think fit to impose in consideration of the assurance that if arrested, he shall be enlarged on bail.”
The Supreme Court in unmistakable terms has declared that the principle to be deduced from various Sections in Cr.P.C. was that grant of bail is the rule, and refusal is the exception.
27. The answer to the contention of Sri Shivappa is found at para-19 of the same Judgment and it reads thus :
“19………………………………………………………….We are concerned herewith a situation of an altogether different kind. An order of anticipatory bail does not in any way directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. In fact, two of the usual conditions incorporated in a direction issued under Section 438(1) are those recommended in Sub-section (2)(i) and (ii) which require the applicant to co-operate with the police and to assure that he shall not tamper with the witnesses during and after the investigation. While granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. The broad foundation of this rule is stated to be that Section 46 of the Cr. P.C. does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under Section 167(2) of the Code is made out by the investigating agency.”
28. Nextly, it was contended for the prosecution that anticipatory bail can be granted only under special or exceptional circumstances and there being no such special features in this case, there is no justification for exercise of power under Section 438 Cr.P.C. or to interfere with the order of the learned Sessions Judge. No doubt, the Supreme Court in BALCHAND JAIN v. STATE OF MADHYA PRADESH, AIR 1977 SC 366 laid stress on ‘special’ or ‘exceptional’ circumstances for the purpose of grant of anticipatory bail. The Constitution Bench of the Supreme Court considering this aspect has stated thus:
“We also agree that the power to grant anticipatory bail should be exercised with due care and circumspection but beyond that, it is not possible to agree with the observations made in Balchand Jain in an altogether different context in an altogether different point.”
29. Lastly, Sri Shivappa, learned Counsel for the Prosecution, relying on the decision of the Supreme Court in KIRAN DEVI v. STATE OF RAJASTHAN, 1988 SCC (Criminal) Page 106 contended that anticipatory bail should not be granted in murder case when investigation was still incomplete.
The Supreme Court itself has declared that the decision of a Constitution Bench and/or larger Bench will be binding on High Courts under Article 141 of the Constitution of India in preference to latter decision by a smaller Bench if they are irreconcilable.
As the ratio enunciated by the Constitution Bench of the Supreme Court in Gurubaksh Singh’s case in-juxtaposition with freedom of an individual and presumption of innocence, still hold the field, I find no merit in any one of the contentions canvassed for the prosecution.
30. In the result, the petition is allowed, and the petitioner, if arrested by the respondent for the said offences, shall be released on bail on his executing a bond of Rs. 25,000/- (twenty five thousand) with two sureties of like sum to the satisfaction of the respondent and on his undertaking to abide by the following conditions:
(i) That he shall make himself available for interrogation as and when required ;
(ii) That he shall not attempt to tamper with the prosecution evidence ; and
(iii) That he shall not leave Bangalore without the express permission of the jurisdictional Magistrate.