ORDER
Shyamasundar, J
1. To a Doctor in distress we say ‘physician heal thyself’. What shall we say to a policeman the preserver of peace and to whom the life and liberty of a citizen is in the usual course entrusted to his care is himself in trouble and seeks the protection of the law to secure his freedom. That precisely is the question herein for consideration in this application filed under Section 439 Cr.P.C. seeking bail, the applicant being a Senior I.P.S. Officer, who was serving as D.C.P. West, Bangalore till the 2nd May, 1988, on which date he was taken into custody by the Central Bureau of Investigation (‘C.B.I’ for short) an organisation based at New Delhi to which the investigation of the case, which has since come to be known in popular parlance as the ‘Rasheed murder case’, has been handed over. Having regard to the prosecution’s case, as now and even before, the locale being the City of Bangalore, it should have been normally investigated by the police of Karnataka. In fact the C.O.D., an elite core of the Karnataka Police, began investigating into the circumstances under which Rasheed, a lawyer from Kerala who was on a sojourn to Bangalore, came to meet with his death. But, in the meanwhile, as a result of the relentless efforts mounted by the lawyers of Bangalore, expressing lack of confidence in the police of Karnataka being apt investigators of the foul crime to which Rasheed is said to have fallen a victim, the C.B.I. were called in and handed over the investigation. Since 25-9-1987, the C.B.I. having taken over the investigation into this case have now in their dragnet apart from the applicant herein, six other police officers among several other as well, all stand charged with having connived at and having murdered Rasheed and thereafter engineering to wipe out the traces of a foul crime, offences punishable under Section 302 I.P.C. read with Section 120B and Section 201 I.P.C.
2. The facts of this case have a long mileage and through its meandering course encompass in its broad spectrum, such factors as institutional rivalry, political vendetta, public paranoia and the day in and day out trial by the medial all of which have contributed to the complexities and Dimensions of the case presently under investigation and now for a limited extent under scrutiny by me.
3. Suffice if for my purpose to begin the backdrop of this case recalling the presence of Rasheed in Bangalore on the 14th to 16th of August, 1987. It is common ground that on the 14th he visited a college called Sanjay Gandhi College of Education in Millers Road coming with the jurisdiction of the High grounds Police Station which is again under the administrative control of the applicant In this case. According to facts on record, Rasheed was then roughed up by the policemen belonging to Highgrounds police for no reason at all, taken back to Highgrounds Police Station only to be confronted by a complaint by a lady called Rathna said to be the Principal of the said Sanjay Gandhi College, alleging that he had misbehaved with her. On that complaint the Highgrounds police registered a case and took Rasheed to the Court of II Metropolitan Magistrate at Bangalore about 5 p.m. on that day. Rasheed who is said to have presented a bedraggled appearance managed to save himself by telling the Court that he was a lawyer from Kerala; that he wanted bail and ultimately the Court having granted bail on his own bond Rasheed is said to have gone back to his place of temporary residence at Bangalore, a lodge called Sandhya Lodge in Subedar Chatram Road. The next day Rasheed went to the press, gave a strongly worded statement to the press indicting the then Home Minister and the police of Highgrounds alleging that they were thirsting for his blood for no reason Ft alt. He is also supposed to have given a representation to the President of Bar Association about which there is some controversy as to whether Rasheed gave it at all. But it is not necessary for me to go into this angle, suffice it to note that there was a representation whether it was made by Rasheed or some one else in the name of Rasheed lamenting the police of Karnataka and the unwarranted attention they were paying to him as a result of which he feared safety for his own life. It would appear the said report due to the intervening holidays on 15th and 16th August, 1987 came to the notice of the Secretary, Bar Association only on the 17th and thereafter some developments having taken place to which it is not necessary in this case to advert to. Finally it transpired on the 18th an Advocate of Bangalore by name Venkatappa moved an application before the II M.M. Court, Bangalore for a search warrant to be issued since efforts to locate Rasheed had been futile. Fearing jeopardy to Rasheed’s life, the Advocate sought for a search warrant being issued to the jurisdictional police. It was first issued to the Assistant Commissioner of Police and later on it was taken back from him and issued to the Assistant Commissioner of Police, Seshadripuram made returnable within 24 hours. But, on the 20th a warrant was issued to the D.C.P. West and the D.C.P. at that time was none other than Narayan, the applicant herein. When there was no return to that warrant also, the next day a warrant was issued to the then Commissioner of Police Sri. K.V. Balakrlshna Rao. As records of the Court below which I have summoned to this Court show the warrant issued to the Commissioner had been returned to the Court on the 25th instant stating that enquiries made by the police revealed that Rasheed who was earlier staying in Sandhya Lodge was not found on 16-9-1987. In fact the C.I. of Chickpet Police Station had also made a representation to the Court directly. But, it so happened that on that day the Commissioner wrote a letter to the Magistrate and stated that only on the 26th he came to know of the body warrant issued and having regard to the fact that Chickpet police had already filed a return in that behalf, he had nothing to say in that behalf. He also adverted to a Habeas Corpus petition moved in the High Court from which he learns that Rasheed was dead. Subsequent investigation done by the C.B.I. indicated that the warrant issued to D.C.P. Narayan was still lying in his office on 26th and in all probability the warrant seen by Mr. Balakrishna Rao, the Commissioner, was the one issued to Narayan and not the one issued to the Commissioner as undeniably the warrant issued to the Commissioner was in the archives of the Court by the 25th instant. A Photostat copy of the warrant issued to Narayan is produced before me by the Counsel for C.B.I., Sri C. Shivappa, and that bears a minute purporting to be in the handwriting of Narayan on the top portion of the warrant. The minute reads:
'The local A.C.P. to attend to it and report.' Mystery still shrouds the where abouts of the original warrant issued to Narayan and according to the C.B.I thereby hangs a tale. Now we pick up the thread from the spot where the body of that napless victim Rasheed was found along side a clump of bushes near the railway track at Salem. This discovery, it would appear, was made by a railway gang-man. On the 18th the matter was reported to the raiIway police and thereafter an inquest panchanama was held, post-mortem was done and the body was buried. Subsequently the body of Rasheed was exhumed by the Tamilnadu police and a further postmortem was done. At that stage the relatives of the deceased have been sum moned. The body was identified and once again consigned to mother earth, But from the person of the deceased two vouchers one of Sandhya lodge, Bangalore and other of a hotel called Sathyaprakash dated 16th August, 1987 were found and that led the Tamilnadu police to make enquiries with the Karnataka Police and an Officer of Karnataka Police having gone to the spot, it would appear, he inspected the receipts and made a report back to his official superiors herein at Bangalore. By then there having been a lot of furore about the disappearance of Rasheed, the C.O.D. was directed to take up investigation into the circumstances of Rasheed's death. In the first instance C.O.D, registered a case against Highgrounds police for offences punishable under Section 202 I.P.C. read with Section 201 I.P.C. and immediately thereafter it would appear they changed front and indicated that the investigation would pr6ceed not against any definite persons but against unknown persons. But, before they could make any progress, the little progress they had made indicating that on the 16th Rasheed had again found his way into the Highgrounds police station; was with the Highgrounds police and thereafter he had slipped away although the Highgrounds police were anxious to keep him back because he was due to return to the Magistrate Court on 17th instant, the later stages of the investigation were handed over to the C.B.I. in virtue of a decision taken by the Government of Karnataka to hand over the investigation to the C.B.I. in the interest of fair and impartial investigation and since then, as stated earlier, the C.B.I. have taken into their custody six police Officers including the accused Narayan. He was in police custody from 2-5-1988 to 9-5-1988 and subsequently he has been in judicial custody. It seems to me it may not be proper to advert to the whole gamut of the material collected against Narayan and I do not also think it proper to make a lengthy denouement of the case of either side, although denouement of the case of either side, although such has been the endeavour of Counsel on both sides who have invited me to record a finding on the circumstances of the case as collected so far and to say whether it is wholly innocuous or as to what extent they incriminate the accused or whether they totally absolve him from all blame. We are now at a very inconvenient stage so far as pronouncement or rendering a final verdict in regard to the material in possession of the prosecution. While it is true all the material has got to be weighed and assessed but at the same time it is not necessary to pronounce on its credibility or legality. Suffice as pointed out by Supreme Court in GURUCHARAN SINGH v. STATE 19/8 Cr.L.J. 129, the Court at this stage is concerned with the existence of material against the accused and not as to whether those material are credible or not, on the merits. Although a large volume of legal cornucopia was cited by both sides indicating the measure and width of the Court's power to decide whether the detention of the accused in custody and its continuance is justifiable in the circumstances or not, having regard to the very wide discretion which the Court enjoys in virtue of the provision of Section 439 Cr.P.C. which imposes no constraints at all on the powers of this Court, it seems to me the very width of those powers enjoins a very chastened and wearied exercise of that power and that power should not be exercised like what a despot in a third world country might do. But, then, as learned Counsel Sri Visweswara has, in the course of a very well martial led argument, repeatedly emphasized I am now seized with the question of granting bail that ultimately results in securing liberty to a citizen and that priceless right cannot be lenied except on justifiable grounds. Indeed it is a very difficult exercise to perform. On the other hand learned Counsel for the C.B.I. Mr. Shivappa particularly during the closing stages of his argument put in an emotive appeal highlighting the hardships to which the investigation by the C.B.I. was subjected, the plight suffered by the Investigating Officers whose home base was in Delhi and who have very little root outside affecting their functional capabilities, particularly when they had to contend with the hostile reception at the hands of Karnataka Police with the investigation itself being trained on a high-ranking officer of the Karnataka Police. He wanted me to juxtapose these factors as against the argument that a citizen's liberty was at stake and the fact that the citizen happens otherwise to be a police officer should not so heavily weigh as to till the balance against him. In NIRANJAN SINGH v. PRABHAKAR 1980 Cr.L.J. 426, Supreme Court indicates that while passing orders on bail applications detailed examination of the evidence and elaborate documentation of the merits of the case should be avoided and no party should have the impression that his case has been prejudiced. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself. But the fact that the application for bail is by a police accused should not deter the Court from doing what is just and proper. It should view the pros and cons undettered by the presence of psychic pressure of police presence It is well to remember these norms in dealing with the application now made before this Court.
4. The considerations for granting bail or for refusing bail are now well settled. Whether it be in the course of the trial, before the trial or before filing the charge-sheet or during the course of the investigation, there being a right in the accused to seek bail, an application made in that behalf has always got to be considered on its merits, but with this difference viz.. when the application is made at the investigation stage what are the considerations that should weigh with the Court are in quite contrast with the stage when matters are more stable, as in the case where the charge-sheet is already filed or in a case where the trial is already in progress and those considerations that are brought to bear at a later stage should not at any rate be brought into focus on material which is gathered during investigation while it is in progress. The guide I would opt in this situation is the step propounded in Gurucharan Singh’s case to see whether any material is there and that material gives rise to a strong suspicion of the complicity of the man, in the commission crime of which he is accused of. Whether it is sufficiently credible or whether it would stand the test of judicial scrutiny later on, are matters which are not germane at this stage.
5. In this case what adds to the difficulties In resolving this tangle is the fact that the material gathered so far rests solely on circumstances. But then on that score the case cannot be denounced or decried for it is often said, ‘men may lie but facts do not.’ Therefore, the circumstantial evidence, evidence deduced from the bizarre conduct of a person who in the normal course is expected to act in a particular manner but acts otherwise without there being any rational reason, is certainly conduct which is Inculpating. Section 8 of the Evidence Act is in point:
“8. Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.”
Illustration ‘e’ to that Section which is pertinent may be noticed:
“(e) A is accused of a crime.
The facts that, either before or at the time of, or after the alleged crime, provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.”
The case against the accused so far depends on his acts on the basis of which his involvement or complicity in the offence is, for the time being, sought to be projected.
6. Although advertence is made to each of the circumstances and an attempt made to show that everyone of them taken either individually or even collectively are woefully insufficient to implicate the accused or connect him with the crime, it is lastly urged, in any view of the matter, all that can be laid at his door is that he tried to suppress evidence and concot false evidence that at best makes him liable for an offence enjoined by Section 201 I.P.C. which is only a ballable offence.
7. But, then, that is not the way, it seems to me, that one should view these developments. In the context I shall advert only to one development and that is to the body warrant which was making the rounds of the office of the police official from 19th to 25th. One warrant was issued to the accused as the D.C.P. West and another was issued to the Commissioner of Police, his immediate superior. The warrant issued to the Commissioner of Police has been returned with a minute recorded by the accused himself on that warrant pointing out that the C.I. of Chickpet, who is one of his direct subordinates, had already made a report to the Court stating that Rasheed was not found at the place which was ordered to be searched. Till today mystery shrouds the whereabouts of the original warrant issued to the accused by the Court. The copy of that warrant is in the records of the Court but the original is significantly missing. A day later the Commissioner made a statement in a report to the Court that he has been shown the warrant only today i.e., on the 26th. But, he adopted the report made by the Chickpet police in that behalf. He has subsequently made a report to the D.G. of police and in his own 162 statement to the C.B.I. during investigation he has said that the factum of issuing a warrant to him had been suppressed, he did not know about it at all but that on the 26th he had seen the warrant issued to the D.C.P. West lying with his personal assistant. Lot of comment was made by both sides on this development but I shall not venture into this controversy. Suffice it to point out that on the warrant of the Commissioner which had been returned to the Court, there is nothing to show that it was routed to the D.C.P. West through the Commissioner. There is absolutely no indication that the Commissioner had even handled that warrant. Then how did this man make a minute thereon and bundle it back to the Court is really an intriguing question and the other question is why did he do it. The answer may be that he did not want to take the chance of the Commissioner referring the warrant issued to him to some other D.C.P. other than himself, thereby inviting the risk of exposure and the second aspect of it is before the Commissioner could commit himself in this behalf he probably wanted to steal a march over the Commissioner and see that the Commissioner never deflected from the course to which he had been committed i.e., the report of the Chickpet police. Why was it done? A plausible explanation is that if he entered the return of the Commissioner’s warrant, there was no chance of the Commissioner making an independent return, secondly if the report made on the Commissioner’s warrant later on turned out to be wrong or false, the blame would go to the Commissioner. This probably is the reason on the basis of which the conduct of the accused in intercepting the Commissioner’s warrant and filing the return purportedly on behalf of the Commissioner can be explained.
8. Now the further question is why did he do all this? Some rational explanation has to be ascertained. What is ventured on his behalf is it was done to cover up the short comings of his subordinates. I cannot really accede to this submission. If his subordinates are found to have committed a felony, something unlawful and something illegal, it becomes the duty of the officer to pull them up and not to screen them from the orbit of the Court. His action is referable to a warrant issued by the Court is something we ought never to forget. If in the disposal of that warrant an illegitimate act is perpetrated by a subordinate officer and if the superior officer steps-in to shield him, the question really is, is he a man who can be depended at all, at any time. But then why should he draw the heat off his subordinates and focus the spotlight on himself is really the question. What reason had he? It would appear he had taken charge as D.C.P. West only on 9-7-1987. All these seamy developments have taken place just one month later. Petitioner is an officer who is transferable all over the State, the subordinates in Bangalore must be new to him. One month is too short a time to develop any kind of attachment, affection or affinity to one’s own subordiantes so as to go to the length of risking his own reputation and credibility for the sake of saving the subordinate. I really do not think the action of the accused was taken to protect his subordinates. He was certainly not covering up for his superior, the Commissioner. There can be no doubt about it, for the argument led before me, ‘if I am guilty, the Commissioner is equally guilty.’ Therefore, it is obvious that he had no thought of shielding the Commissioner. Then the logical conclusion is if he did something illegal, if he did something untenable in the matter of that warrant, he was only trying to cover up for himself. Now take these facts in the back-ground of the charge against him. The warrant itself was issued to search and produce the person of that Rasheed who had already become by them a body without life, if the investigation now done is to be believed. It is in that context of the body warrant of a man who had already died that all this tight rope walking was done by this officer. There can be little gain-say in denying that these facts atleast tentatively reveal his complicity in the commission of the offence which is alleged against him and such an inference can be drawn without any speculation.
9. It seems to me that taking into account the foregoing circumstances, it is sufficient to say that for the present a prima facie case has been established notwithstanding the criticism levelled that the material collected so far did not connect him with the main charge of Section 302 or this man being a part of the conspiracy to commit the offence of murder. Today a set of post-mortem reports have been furnished. Both of them appear to be tentative but they do not leave any doubt that, as things now stand, that Rasheed died because of an injury to the nose and that he simply bled and bled to death. Death might have been instantaneous or might nave supervened due to haemorrhage. The post-mortem reports prima facie indicate that death of Rasheed was due to a homicidal injury subject to there being further proof. Tentative as the conclusion may be, it is no doubt well warranted on the material produced today. The undue anxiety displayed by the accused in the matter of this warrant, which really signalled the starting point of the investigation into the episode does not thus exclude the possibility of this man being privy to a foul murder if it is ultimately established. Therefore, there is little point in demanding at this stage v/hen the investigation is still in progress a lot of material to show how exactly he was involved or what part he took in the conspiracy or whether he did not take part in the conspiracy at all etc. To say more about it would be to indulge again in conjectures and that would harm the interest of the accused himself.
10. The question now is whether in this situation should he be released on bail. The ground of ill-health was sought to be made out but as I noticed during the argument it was pushed forward only in a tentative fashion and clearly remained a secondary factor. From what we read in the press reports today, the petitioner has been returned to the jail after having been discharged from the hospital which could only mean that he has been restored to normal health and hence the ground of illness cannot be a justification for enlarging him on bail. The other ground urged is that the accused is now in judicial custody and, therefore, the prosecution does not need him, that he is not likely to abscond being himself a Police Officer and that he is not likely to interfere in the course of the investigation or make any attempt at subverting it. In support of this argument, a very strong submission is made based on the events prior to the 2nd of May, 1988 on which day he was taken into custody. It is pointed out that during the period preceding his detention and the commencement of the investigation by the C.B.I. on 25th September, 1987 there had been no complaint whatsoever at all that he was trying to muzzle Into the investigation and to spike it. May be as contended, till the C.B.I. put its hands on him, there was no such complaint. But his previous conduct is not beleaguring the investigation cannot be taken for granted so as to assume now that his own head is on the block, he will not stop from going all out to sabotage the investigation. The argument that sabotaging of the investigation can be done even when the petitioner is in jail, is no argument in my view to support the theory that on becoming a free man he will go nowhere near the investigating agency. It seems to me that in the present state of affairs and in the facts of this case even a prospect of obstructing the course of justice or subverting the course of justice would be sufficient to deny bail. The Court is not in this case dealing with just an ordinary person as is generally the case. The Court is dealing with a trained Police Officer of considerable importance and experience. I have already pointed out his propensity to do away with circumstances which in his view are likely to point an accusing finger towards him. If that be the case it seems to me that exercising discretion in his favour and enlarging him on bail at this stage, when the further and critical area of the prosecution’s case is still said to be under investigation, would not be in the interest of justice.
11. In reaching this conclusion I am not unmindful of the observations made by the Supreme Court in BHAGIRATHSINH JUDEJA v. STATE OF GUJARAT , on which Mr. Visweswara, learned Counsel for the petitioner, repeatedly relied upon. Therein it was pointed out while considering a bail application the Court must have regard to two circumstances, (i) whether a prima facie case is established and (ii) whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. The Court had also cautioned that the power to grant bail should not be exercised as if the punishment before trial was being imposed and even where prima facie case was established the approach of the Court in the matter of bail should not be that the accused should be detained by way of punishment. It thus becomes clear that the decision to grant bail should be devoid of all punitive element which comes into focus after the person accused of an offence is held guilty of the same. I need hardly point out I have already come to the conclusion that the material on record warrants a finding that a prima facie case has been established against the petitioner. While there may be no reason to think that the petitioner would not make himself scarce at the ensuing trial, if any, it is not, however, possible to say that he will stay off the investigation and not lay intruding hands on the investigation. This conclusion does support the refusal to grant bail sought for. But I am also to point out that in the earlier decision of Gurcharan Singh v. State Delhi Administration, which I have had occasion to notice earlier, Supreme Court pointed out that apart from the two paramount considerations that should weigh with the Court in these matters namely likelihood of accused fleeing from justice and tampering with the prosecution evidence while they relate to ensuring of a fair trial of the case In a Court of justice and hence due weight should be given to these factors. There are other factors as well to be countenanced by the Court while disposing of a bail application and those considerations, according to the Court, are the position and status of the accused with reference to the victim and witness, the likelihood of the accused fleeing from justice with a grim prospect of plausible conviction in” the case, the tampering with witnesses; history of the case as well as of Its investigation and other relevant grounds which in view of so many variable factors cannot be exhaustively set out.
12. This Court had occasion to follow Gurucharan Singh’s case in PRASAD v. STATE OF KARNATAKA 1982(1) Cr.L.J. 542, on which Mr. Shivappa, Counsel for C.B.I. relied on. In that case it was pointed out that apart from the two considerations namely the person concerned becoming a fugitive from justice and interfering with the course of justice by tampering with the witnesses, other considerations referred i.e in Gurucharan Singh’s case referred to supra have necessarily to be taken interalla into consideration and it is the cumulative effect of all these circumstances that has necessarily to go into the decision regards granting or refusal of ball. I have found it necessary to draw attention to these decisions to point out that it is not just the two grounds referred to in Bhagirath Singh’s cases which would ultimately tilt the scale either In favour or against the applicant for bail and that it is a consideration covering a fairly large area of conflicting factors that must ultimately persuade the Court either to grant or refuse bail. In conclusion all that I wish to say is the totality of the inputs which go into the decision regarding grant or refusal of bail may not be limited only to the two considerations referred to by the Supreme Court in Bhagirath-singh’s case and emphatically relied on by Mr. Visweswara, Counsel for the petitioner, seeking to confine the sweep of the Court’s assessment only to those factors and to nothing else.
13. For these reasons I hold it Inexpedient to grant the ball sought for and, therefore, reject the application made in this behalf. As I have found it inexpedient to exercise such a discretion in favour of the applicant in the facts and circumstances of this case, I find it unnecessary to take assistance from the several other decisions to which my attention was drawn by Counsel appearing on either side.
