Posted On by &filed under High Court, Rajasthan High Court.


Rajasthan High Court
Kashi Ram vs State Of Rajasthan And Anr. on 3 December, 1987
Equivalent citations: 1988 WLN UC 51
Author: F Hasan
Bench: F Hasan


JUDGMENT

Farooq Hasan, J.

1. On the basis of a report lodged by one, Kashiram, a case was registered for the offences under Sections 452 and 323, IPC against Santosh and Hetram which has subsequently been converted into one under Section 302, IPC, after the death of injured, Smt. Chanda, who happens to be mother of accused-non-petitioner No. 2 Santosh. The accused non-petitioner No, 2 moved an application for seeking anticipatory bail in the Court of Sessions Judge, Alwar. The learned Sessions Judge, Alwar, vide his order dated 25th March, 1987, allowed the application of the non-petitioner No. 2 granting anticipatory bail under Section 438, Cr. PC.

2. The petitioner moved an application under Section 439(2), Cr.PC for cancellation of bail granted to the non-petitioner No. 2. The learned Sessions Judge, Alwar, vide his order dated 15th July, 1987 dismissed the application of the petitioner declined to cancel the bail granted to the non-petitioner No. 2. Hence the petitioner has now moved this application for cancellation of bail under Section 439(2), Cr.PC. Notice of this application was given to the non-petitioner No. 2.

3. Heard learned Counsel for the parties. Learned Counsel for the applicant submitted that the learned Sessions Judge has given unnecessary weight to the report lodged by the non-petitioner No. 2, and the injuries sustained by the accused; and that, the facts mentioned in the report lodged by the non-petitioner No. 2 were found to be false by the police and final report has been given and as accepted by the Court therefore, the learned Counsel contended that there are compelling circumstances for cancellation of anticipatory bail granted to the non-petitioner No. 2 and on this ground, the learned Counsel contended that the order for granting bail to the non-petitioner No. 2 deserves to be quashed. The bail order in favour was also challenged on the ground that the non-petitioner No. 2 is a criminal offender and has been tamperirg with the prosecution witnesses Shri Dhankhar added.

4. Learned Counsel for the accused-non-petitioner No. 2, on the other hand, contended that the evidence collected by the Investigating Officer is discrepant; and because of the conflicting versions contained in the police statements, the learned Sessions Judge was justified in granting bail to the accused-non petitioner No. 2. Learned Counsel for the accused-non-petitioner No. 2 further contended that in view of the objects and reasons with regard to Section 438, Cr. PC the learned Sessions Judge was justified in granting bail to the accused-non-petitioner No. 2. The learned Counsel also pointed out discrepancies and contradictions in the police statement of the witnesses. Learned Counsel then argued that only two eye witnesses, Padam and Pooran, have been named in the first information report but, these two witnesses have not given any positive evidence against the accused non-petitioner No. 2 in as much as according to the learned Counsel, the injuries attributed to the non petitioner No. 2 were not sufficient to cause death in the ordinary course, so the accused non-petitioner No. 2 cannot be held guilty for the offence under Section 302, IPC.

5. Learned Counsel for the accused non-petitioner No. 2, then argued that in the aforesaid circumstances the bail granted to the accused non petitioner No. 2 cannot be cancelled without any compelling circumstances.

6. I have given my thoughtful consideration to the argument of both the learned Counsel. The law is well settled that under Section 438 or 439, Cr. PC the Sessions Judge has a discretion to grant or refuse bail to a person accused of a non-bailable offence, but such discretion can only be exercised judicially for valid reasons and not arbitrarily or capriciously. Ordinarily, the High Court will not exercise its discretion under Section 439(2) Cr. PC by cancelling a bail granted by the Sessions Judge in favour of an accused, but if bail has been granted to an accused of a non-bailable offence pubishable with death or imprisonment for life in a manner which smacks of arbitrariness, capriciousness or perversity, on the part of the Court of Sessions granting such bail, the High Court has not merely the discretion but a duty laid on it under Section 439(2), Criminal Procedure Code to cancel the bail and order the accused to be re-arrested.

7. In Pokar Ram v. State of Rajasthan , the Supreme Court cancelled the bail granted by the Sessions Judge to a person accused of a non-bailable offence. Their Lordships of the Supreme Court while cancelling the bail, observed as under:

Ordinarily, Supreme Court is loath to interfere with the orders granting or refusing bail but it cannot be an insurmountable obstacle in the way of rectifying an order which tends to disclose miscarriage of justice.

Relevant considerations governing the court’s decision in granting anticipatory bail under Section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher court and bail is sought during the pendency of the appeal. Unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. A direction under Section 438 is intended to confer conditional immunity from the touch as envisaged by Section 46(1) or confinement.

When a person is accused of an offence of murder by the use of a fire arm, the Court has to be careful and circumspect in entertaining an application for anticipatory bail Status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail Anticipatory bail to some extent intrudes in the sphere of investigation of crime and the court must be cautious and circumspect in exercising such power of a discretionary nature. When the power under Section 438, Cr.PC was exercised sub-silentio as to reasons or on considerations irrelevant or not germane to the determination, the Supreme Court, to avoid miscarriage of justice, must interfere.

Some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress. In such a case, therefore, the Supreme Court has no option, but to cancel the order granting anticipatory bail.

8. In view of the aforesaid principle laid down by the Apex Court that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too, when the Investigation is in progress. In order to examine this case in the light of the principle laid down by the Supreme Court in Pokar Ram’s case.

9. I would like to appreciate the evidence collected by the Investigating Agency in the present case so as to adjudge as to whether the learned Sessions Judge was justified in granting anticipatory bail to the accused-non-petitioner No. 2.

10. It would not be out of place to mention here that the report has been lodged by father of the accused non-petitioner No. 2 and there is no dispute that the death of Smt. Chanda Devi mother of the accused-non-petitioner No. 2 was homicidal. In the report lodged by Kashiram, father of the accused-non-petitioner No. 2, and in his statement, Kashiram (informant) has assigned specific overt act to the accused-non-petitioner No. 2 and it has come in evidence that the accused-non-petitioner No. 2 inflicted two blows on the head of the deceased, Smt. Chanda Devi by a ‘Sariya’ (iron-rod). The statement of Smt. Chanda was also recorded before her death and in her statement she had stated that the accused-non-petitioner No. 2 inflicted two ‘Dandas’ (wooden stick) on her head. Pooran in his statement recorded under Section 161 Cr.PC has deposed that the accused-non-petitioner No. 2 inflicted ‘Danda’ blows on the head of Smt. Chanda Devi, but in his statement recorded under Section 164, Cr.PC he did not attribute any injury on the person of the deceased at the hands of the accused-non-petitioner No. 2 Padam in his police statement recorded on 3-5-1987 has deposed that Santosh (accused-non-petitioner No. 2) inflicted the blow on the head of Smt. Chanda but in the statement recorded on 2-8-1987, he stated his ignorance about the injuries sustained by the deceased. Jugal Kishore (brother) and Kanta (sister) of the accused-non-petitioner No 2) in their police statements have assigned specific overt act against the accused-non-petitioner No. 2. The police statements of Purshottam and Laxman Singh have also been filed along with report under Section 173, Cr.PC and, in these statements, specific overt act has been assigned to the accused-non-pctitioner No. 2.

11. In the aforesaid statement of the witnesses, there is discrepancy with regard to the weapon of offence said to have been used by the accused-non-petitioner No. 2, and Pooran and Padam are supporting prosecution story made in the police statement but Pooran in his statement under Section 164, Cr.PC and Padam in his police statement recorded on 2-8-1987 did not corroborate the facts mentioned in the FIR. Jugal Kishore and Kanta have not been named in the First luformation Report. But, they are supporting the prosecution version. However, I am of the opinion that at the time of considering the bail application, the effect of discrepancies pointed out, in the police state with regard to the weapon of offence and non-mentioning the name of certain witnesses in the FIR cannot be given consideration because, in case any adverse inference is to be drawn with regard to these facts then definitely it will be a pre-mature finding or observation, and at the stage of deciding the bail application the Court is not required to scrutinise the evidence in detail.

12. As said earlier, while deciding the bail application and specially the one under Section 438, Cr.PC, some very compelling circumstances must be made out for granting bail to a person accused of an offence of murder.

13. As is evident from the objects and reasons of Section 438, Cr.PC it was observed by the Law Commission while recommending the provisions of Section 438, Cr.PC in its 41st Report, that the necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days; and in recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. According to the Law Commission, apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

14. In view of the evidence stated and noticed above, it cannot be said that the accusation against the non-petitioner No. 2 is false. The deceased, Smt. Chanda, mother of the accused-non-petitioner No. 2, in her statement has assigned specific overt act to the accused-non-petitioner No. 2. In her police statement she (Smt. Chanda) has also stated that the first blow was given by her second son, Hetram (co-accused) and then the blows by ‘Dandas’ were inflicted by the accused non- petitioner No. 2, Santosh. Similar facts have been narrated by Kashiram in his statement before the police and in the report lodged by him. The only difference at this stage when the investigation was in progress, was with regard to the weapon. Looking to the police statements of Pooran, Purshottam, Padam, Laxman Singh, Jugal Kishore, and Kanta, 1 am of the opinion that the accused-non-petitioner No. 2 was not entitled for the grant of anticipatory bail.

15. The learned Sessions Judge, while considering the discrepancy with regard to the weapon of offence and injuries on the person of the accused-non-petitioner No. 2, allowed the bail application. But, I am of the opinion that this was not correct appraoch while deciding the bail application under Section 438, Cr.PC because, according to the principles enunciated by the Apex Court in Pokar Ram v. State of Rajasthan (supra), the relevant considerations governing the court’s decision in granting anticipatory bail under Section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher court and bail is sought during the pendency of the appeal. These situations in which the question of granting or refusing to grant bail would arise, materially and substantially differ from each other and the relevant considerations on which the Courts would exercise its discretion, one way or the other, are substantially different from each other. This was not a case where the accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive or that the object is to injure and humiliate the non-petitioner No. 2 by having him arrested. And. these are the main guidelines for considering and deciding the bail application under Section 438, Cr.PC.

16. In view of the aforesaid circumstances,this is a fit case for cancellation of bail-granted to the accused non-petitioner No. 2 but, at the same time, I would like to make it clear that by this order the non-petitioner No. 2 should in no way prejudice if consequent upon setting aside the order of granting anticipatory bail the non-petitioner No. 2 is arrested which must ordinarily follow, it is open to him if he is so advised to move the bail application for being enlarged on bail and the Court would consider the same on merits wholly uninfluenced by the earlier orders and by this order.

17. Accordingly, this criminal Misc. bail cancellation application moved by the complainant-petitioner, is allowed; and the order dated 25th March, 1987 granting anticipatory bail to the non-petition No. 2 Santosh s/o Shri Kashi Ram, in FIR No. 23/1987 P.S. Khedli (Alwar) is quashed and set aside and the bonds along with sureties furnished by Santosh are cancelled.


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