JUDGMENT
L. Manoharan, J.
1. This application under section 438 of the Criminal Procedure Code is by one of the accused in Crime No. 44 of 1995 of Police Station, Ladkhed. The said crime was registered under sections 147, 148, 149, 188, 302 and 307 of I.P.C. and under section 135 of the Bombay Police Act.
2. According to the prosecution, there was an election to the Gram Panchayat at village Kamathwada on 20-4-1995. Two parties were contesting the election. One Ramesh Ajabrao Pawar was the head of one group and one Dattatraya Punjaram Dhote and others constituted the other group. After the election, results were announced, accused Punjaram Dhote and his associates, including the present applicant, formed themselves into an unlawful assembly with the common object of comitting murder attempt to murder and other offences, armed themselves with sticks, iron pipes, iron rods and swords, and they assaulted the brother of the complainant and injured him. Receiving the injuries – Sitaram Ajabrao Pawar, brother of the complainant, succumbed to the injuries. It is also the case of the prosecution that several others also sustained injuries. The occurrence took place on 20-4-1995 and, on the same day, the brother of the deceased tendered the First Information Report under section 154 Cr. P.C. before the police station House Officer. It is the case of the prosecution that out of the 21 accused, 18 were arrested. Out of 18 persons, one was released on bail on health ground. Three accused, including the present applicant, could not be arrested as they are absconding.
3. Now, learned Counsel for the applicant – Mr. Rizwy raised several points in support of the applicant contending that, as a matter of fact, the applicant is totally innocent and there is nothing to connect him with the crime. He maintained that brother of the deceased, who had tendered the F.I.S. and father of the deceased, who had been questioned under section 161 of the Cr. P.C. filed separate affidavits on 6-6-1995 stating that the mention of the name of the present applicant in the F.I.S. by the brother of the deceased and the mentioning of his name in his statement given under section 161 Cr. P.C. by the father of the deceased are inadvertent mistakes. Therefore, Mr. Rizwy maintained that on that itself it should be concluded that there is absolutely nothing to connect the accused with the offence and, therefore, the applicant-accused is entitled to be released on anticipatory bail. He also contended that mere absconding cannot be incriminatory so as to deny benefit of section 438 Cr. P.C. to the present applicant.
4. Learned A.P.P. Mr. Mishra, on the other hand, submitted that charger witnesses 8, 9 and 13 apart from the statements of the brother and father of the deceased, have stated the presence of the applicant amongst the rioting mob. Mr. Mishra submitted that charger witness No. 8 has specifically stated before the police that the applicant was armed with a stick at the time of the occurrence. Mr. Mishra also referred to Annexure-E, produced by the applicant, which is a communication to the Government Pleader from the police station, wherein mention is made that the applicant has created terror in the village. Mr. Mishra maintained that this document produced by the applicant itself would demonstrate that the release of the applicant on anticipatory bail is hazardous. It was also the case of Mr. Mishra that the affidavits filed by the brother and the father of the deceased during the course of investigation cannot be given any importance at this stage for grant of anticipatory bail to the applicant.
5. In reply to the above argument of Mr. Mishra, the learned Counsel for the applicant Mr. Rizwy, referred to the decision of the Supreme Court in Kali Ram v. State of Himachal Pradesh, 1974 C.A.R. 1, to contend that such statement can be considered as previous statement. According to Mr. Rizwy, the statements must be treated as those falling under section 161 of Cr. P.C. By the wordings of section 161 Cr. P.C. it cannot be said that the said section enables anybody to file affidavit. Perhaps, affidavit filed by a witness may be treated as previous statement and that could be utilised only during the course of trial. Then Mr. Rizwy relying on the decision in Namdeo Daulata Dhayaguda and others v. State of Maharashtra, , maintained that merely because somebody has stick with him that by itself cannot be a circumstance to infer that he has shared common object. The question whether one has shared the common object essentially is a matter for inference from the facts and circumstance of each case. If one is found to have stick and formed himself part of a mob consisting of persons armed with iron pipes, iron rods, swords, etc. then the presence of that person with a stick in his hand can be incriminatory which could lead to the inference that he has at least prima facie shared common object. At this stage, this Court can proceed only on the material collected by the investigating agency. Therefore, the decision cannot be of assistance to the learned Counsel for the applicant.
6. Mr. Rizwy then relied on the decision of the Madras High Court in S. Saravanan alias Saravanaperumal v. The State, 1995 Cri. L.J. 1999, to contend that the ratio of this decision will come to the aid of the applicant. It was pointed out by the learned Counsel for the applicant that this case being one which resulted from political rivalry, applying the ratio in that decision, the applicant has to be granted anticipatory bail. Reference was also made by Mr.Rizwy to the decision of the Delhi High Court in Ram Kumar Tyagi v. State and another, 1995 Cri. L.J. 1877, to contend that with due regard to the principles laid down therein, the applicant is entitled to get the anticipatory bail. A reading of paragraph 9 of the said decision itself will bring out that facts and circumstance of this case is, in no way, similar to the case in that decision. In the said decision, it was a teacher who was accused of an offence. There were three versions as to how the occurrence took place and the learned Judge considered those aspects also. That is not the case here.
7. Apart from the above, whereas the occurrence took place on 20-4-1995, the affidavits were filed by the brother and father of the deceased only on 6-6-1995. Prima facie it would appear that at the stage of investigation extraneous statements cannot normally be given much value, for Criminal Procedure Code provides for recording of statements, occasion for recording of such statements and method of recording the statements. The law enjoins the function and also the use of those statements recorded under sections 154 and 161 of Cr. P.C. As noted, even assuming that such affidavits could be taken as previous statements, its relevancy and function can normally arise only at trial. When the Court is at a matter that arises at the stage of investigation, the Court will not normally be justified in giving importance to statements filed by individuals. The long delay in filing the affidavits cannot be ignored. Apart from all these, the Court, when is at the question of grant of anticipatory bail under section 438 of Cr. P.C., certainly should focus its attention to the seriousness of the crime, the manner in which the crime was committed, the possibility of the accused to abscond, his tampering with the witnesses and the chance of his misusing his liberty. The Court cannot be oblivious of the repercussion in case anticipatory bail is granted to the accused when the Court feels that the offence alleged against the accused has the potency to affect the system to which the country is committed. Muscle power cannot be permitted to interfere with electoral process. The record of this applicant does not instill assurance that he will not flee justice because out of 21 accused persons though 18 could be arrested three accused, including the present applicant, could not be arrested as they are absconding. Mere fact that the charge sheet has already been filed cannot be a sole consideration for favourably exercising the jurisdiction under section 438 of the Cr. P.C.
8. With due regard to the facts and circumstance particularly the fact that the accused was a Sarpanch for a pretty long period, it cannot be said that the chance of his influencing or intimidating the witnesses is remote. Taking into account the totality of the circumstances, it is not possible to agree with the learned Counsel for the applicant Mr. Rizwy that the applicant is entitled for the discretion of this Court under section 438 of Cr. P.C. to be exercised in his favour. The application, therefore fails and is dismissed.
Application dismissed.