ORDER
H.R. Panwar, J.
1. By the instant petition under Section 439(2) of the Code of Criminal Procure, 1973 (for short ‘the Code’ hereinafter), the first informant has challenged the order dated 15.11.2007 passed by learned Additional Sessions Judge, Bhadra, district Hanumangarh (for short ‘the trial court’ hereinafter) granting anticipatory bail to respondent No. 2 Rajinder Kumar under Section 438 of the Code in a criminal case arising out of FIR No. 123/07 P.S., Bhirani for the offences under Sections 307, 326, 324, 323 and 341/34 IPC.
2. I have heard learned Counsel for the parties.
3. Carefully gone through the order impugned dated 15.11.2007 as also the police investigation diary. I have also carefully gone through the statements of three injured namely the present petitioner Sampatram, Sunil and Anil recorded by the police under Section 161 of the Code. Apart from the statements of these three witnesses, I have also gone through the statements of other witnesses who have witnessed the occurrence.
4. It is contended by learned Counsel for the petitioner that accused respondent No. 2 Rajindra Kumar along with other co-accused surrounded the injured persons with an intention to cause murder of injured persons, inflicted numerous injuries to them. They were armed with deadly weapons like Axe, Barchhi, Lathis etc. and accused respondent No. 2 Rajindra Kumar was armed with an Axe, a sharp edged weapon, and inflicted injuries to petitioner Sampatram, Sunil and Anil. Petitioner Sampatram suffered as many as eight injuries, his sons Sunil suffered as many as 11 injuries and Anil suffered as many as 17 injuries. All the three injured persons suffered the injuries by sharp edged weapons and specifically the head injury to Sunil has been assigned to respondent No. 2 though the witnesses stated that the respondent No. 2 who was armed with Axe, a deadly weapon, inflicted injuries to all the three injured persons. It is further contended by learned Counsel for the petitioner that after having been released on anticipatory bail, the respondent No. 2 and other co-accused again made an attempt to cause breach of peace and threatened the injured persons, for which a complaint under Sections 107, 116 (3) of the Code was filed against the respondent No. 2 and other co-accused namely Bharatsingh, Vinod, Dinesh @ Chhoturam, Kalawati, Suman etc. and Executive Magistrate, Bhadra has bound down them. Even thereafter also, they have threatened the first informant and others of dire consequences because it is alleged that they have unauthorized pistols etc. and have been threatening to the petitioner and his two sons and therefore, the petitioner and his two sons apprehend danger to their life at the hands of the respondent No. 2 and other co-accused named above. Learned Counsel for the petitioner submits that the anticipatory bail under Section 438 Cr.P.C. has been granted by the trial court against the settled law by the Hon’ble Supreme Court and according to learned Counsel there is strong evidence prima-facie constituting the offences under Sections 307, 326 and other sections of IPC as mentioned above and therefore, seeks cancellation of bail.
5. Learned Counsel for the petitioner has relied on decisions of Hon’ble Supreme Court in Adri Dharan Das v. State of West Bengal 2005 SCC (Cri) 933, Mehboob Dawood Shaikh v. State of Mahrashtra 2004 SCC (Cri) 551 and three decisions of different High Courts in Chuni Lal and Ors. v. State of Punjab 1996 CRI L.J. 4474 (DB); State v. Mahinder Singh 1994 Cri. L.J. 841 (Delhi High Court) and in Gayaram Mondal v. State and Anr. 1995 CRI L.J. 1730 (Kolkatta High Court). Learned Counsel appearing for the accused respondent No. 2 contended that petitioner Sampat Ram and accused respondent No. 2 are the brothers and there had been some property dispute and the occurrence has taken place on the spur of moment and there is a cross case. Learned Counsel for the respondent No. 2 has relied on a decision of this Court in Kailash Singh v. State and Anr. 2006 Western Law Cases (Raj.) UC 623 and a decision of Hon’ble Supreme Court in Aslam Babalal Desai v. State of Maharashtra . I have given my thoughtful consideration to the rival submissions made by the learned Counsel for the parties. In the instant case, the first information report being FIR No. 123/2007, was registered on the basis of the Parcha Bayan of the petitioner injured. In the Parcha Bayan, it has been categorically stated that the accused persons named in the statement, which includes the present respondent No. 2 Rajinder Kumar, surrounded the injured persons with an intention to cause murder of first informant and his two sons. The accused respondent No. 2 was said to have been armed with an axe, coaccused Bharatsingh with Barchhi (Gandasi), Chhoturam with Lathi, Vinod with Spade, Kalawati and others ladies with lathies. It is further stated that the petitioner and his two sons Sunil and Anil were assaulted by causing injuries by Axe, Barchhi and Spade all sharp edged weapons and because of numerous injuries suffered by injured persons, the petitioner and his two sons Sunil and Anil became unconscious and fell down and thereafter the accused mentioned in the statement said to have fled away. The police registered the crime report for the offences noticed above. In the statement under Section 161 of the Code also, the similar version has been given by the petitioner so far as respondent No. 2 is concerned and it has categorically been stated that he was armed with Axe and others with Barchhi, Spade, lathies etc. and in order to commit the murder of petitioner and his two sons, the accused caused injuries by Axe, Barchhi, Spade, Lathies etc. It has specifically been stated at many places in the statement that accused respondent No. 2 was armed with Axe and inflicted injuries to all the three persons i.e. present petitioner and his two sons Sunil and Anil.
6. Injured Sunil also made a similar statement that in order to cause the murder of his father, brother and him, all the accused respondents named in the FIR as also in his statement, came armed with Axe, Barchhi, Spade and Lathies. He stated that first of all accused respondent No. 2 Rajendra inflicted injury on the head of Sunil by Axe. The injury on the head of Sunil corroborates with his injury report and on being examined by the Radiologist, it was found to be grievous in nature as there was a fracture of frontal B/L Parietal bones. Injured Sunil suffered as many as 11 injuries, out of which injury No. 1 is on the skull resulting in numerous fractures. The injury No. 2 and 3 were also on the skull i.e. parietal bone and occipital bone respectively and according to medical opinion, they were grievous in nature. All the three injuries were caused by sharp edged weapon. Apart from grievous injuries, injured Sunil has also suffered number of injuries on the skull i.e. left temporal region, right frontal region, lower temporal region, upper temporal region, mid parietal region VGT etc. Almost all the injuries suffered by Sunil are by sharp edged weapon and large number of injuries are on most vital part of the body i.e. skull resulting in numerous fractures and he was admitted to the hospital in the Neurology Department and remained hospitalized for many days.
7. Similarly, the other injured Anil also made similar statement to that of the statement of petitioner and his son Sunil and stated that all the accused persons named in the statement came together armed with deadly weapons i.e. Axe, Barchhi, Speade and Lathies in order to cause murder of the petitioner and his two sons, surrounded them and inflicted numerous injuries to all the three persons. It is stated that the respondent No. 2 was armed with an Axe. Injured Anil suffered as many as 17 injuries and was admitted to the hospital and underwent treatment for considerably long period. Injured Sunil was admitted to V.K. Neurocare & Trauma Research Hospital, Hissar in emergency on 14.7.2007 and continued to remain under treatment up to 24.7.2007. The treatment record is on the police investigation diary including the operation notes etc. Injured Anil also suffered bony injuries resulting in certain fractures. The report of Shivam Diagonostic Centre wherein the injured Sunil underwent N.E.C.T. Head, reveals that he suffered multiple haemorrhagic contusions in B/L parietal lobes in top cuts with extensive pheumocephalus component, mild cerebral edema, fracture of frontal and B/L parietal bones. Thus, injured Anil and Sunil, both sons of the petitioner, remained hospitalized in V.K.Neurocare and Trauma Research Hospital, Hissar for considerably a long period and underwent the treatment. Except the accused respondent No. 2, all other accused were said to have been armed with deadly weapons, have been arrested. So far as the accused respondent No. 2 is concerned, without remaining in police custody for investigation and interrogation as also without recovery of weapon of offence i.e. Axe, he moved an application before Additional Sessions Judge, Bhadra under Section 438 Cr.P.C. and the Additional Sessions Judge granted anticipatory bail on extraneous consideration i.e. that the accused respondent No. 2 is a serving teacher and his arrest is not necessary for the recovery. The ground on which the anticipatory bail has been granted is foreign to the criminal justice system, on the contrary, in total disregard of the settled law on the point of bail propounded by the Hon’ble Supreme Court in a catena of decisions. The prosecution case is consistent that the accused respondent No. 2 was armed with deadly weapon i.e. Axe, caused repeated injuries to three injured persons i.e. the petitioner and his two sons namely Sunil and Anil in order to commit murder of all the three persons. He has chosen the most vital part of the body of the injured persons i.e. head and inflicted repeated injuries which is evident from the injury reports, the report of the Radiologist and the report of V.K. Neurocare and Trauma Research Hospital, Hissar and the fact that two of the injured remained for long time hospitalized in the Neurology department of the said hospital. On investigation, there is evidence and certificate issued by the Head Master of the Govt. Primary School that on the date of occurrence the accused respondent No. 2 was not in the school.
8. From the material available on the investigation diary, I am of the view that prima-facie the offences under Sections 307 and 326 IPC apart from other offences are made out against the accused respondent. I am fortified my view with the catena of decisions of Hon’ble Supreme Court and the reference may be made to State of Maharashtra v. Balram Bama Patil and Ors. , Girja Shankar v. State of U.P. , Sarju Prasad v. State of Bihar , Bappa alias Bapu v. State of Maharashtra , Vasant Vithu Jadhav v. State of Maharashtra , R. Prakash v. State of Karnataka .
9. In Adri Dharan Das v. State of W.B. (supra) Hon’ble Supreme Court held that the power exercisable under Section 438 Cr.P.C. is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse the liberty, then power is to be exercised under Section 438.
10. In Mehboob Dawood Shaikh, Hon’ble Supreme Court held that when a person to whom bail has been granted either tries to interfere with the course of justice or attempts to tamper with the evidence or witnesses or threatens witnesses or indulges in similar activities which would hamper smooth investigation or trial, bail granted can be cancelled.
11. In Chuni Lal and Ors. v. State of Punjab (supra) the Division Bench of Punjab and Haryana High Court cancelled the bail granted on the ground that the accused are misusing the liberty granted to them ever since they have been enlarged on bail.
12. In State v. Mahinder Singh (supra) looking to the gravity of the offence alleged against the persons which are serious in nature and there was apprehension of witnesses being tampered with by the accused, the Delhi High Court thought it fit to cancel the bail and accordingly bail was cancelled.
13. In Gayaram Mondal v. State and Anr. (supra), a Full Bench of Cancutta High Court cancelled the bail granted to the accused therein on the ground that the allegations in general diary entries that accused subsequent to his release on bail threatening informant and his family members for filing FIR and thus misused the liberty granted to accused.
14. In the decision relied on by learned Counsel for accused respondent in Aslam Babalal Desai v. State of Maharashtra (supra), Hon’ble Supreme Court highlighted the grounds when the bail granted can be cancelled. The decision in Aslam Babalal Desai’s case deals with the case for cancellation of bail when the bail was granted under Section 439 after arrest of the accused and thereafter on an application for cancellation of bail, the Apex Court by elaborate decision in para 11 of the report highlighted the grounds for cancellation of bail, some of which are: when the accused misuses his liberty by indulging in similar criminal activity and interferes with the course of investigation, attempts to tamper with evidence or witnesses, threatens witnesses or indulges in similar activities which would hamper smooth investigation.
15. In Kailash Singh v. State and Anr. (supra) this Court held that the trial court fell in error in cancelling the bail granted by Judicial Magistrate after arrest to the accused therein keeping in view the decision of Hon’ble Supreme Court in Aslam Babalal Desai v. State of Maharashtra (supra) wherein guidelines as noticed above have been given, and none of the ground existed for cancellation of bail in that case.
16. In this view of the matter, keeping in view the law laid down by Hon’ble Supreme Court in Catena of decisions noticed herein above, and more particularly in Adri Dharan Das, in my view, prima-facie there is strong evidence of committing the offence of attempt to murder and causing the grievous hurt by use of deadly weapon to various injured persons noticed above having essential ingredients for construing the offences under Sections 307 and 326 IPC and deadly weapon of offence i.e. Axe alleged to have been used by the accused respondent No. 2 in inflicting injuries to the injured persons as noticed above on the most vital part i.e. skull and ignoring this material fact and question of recovery of Axe, the learned Additional Sessions Judge granted anticipatory bail only on the ground that the accused respondent is a serving teacher and no recovery is to be effected from him. Whereas the presence of the accused respondent at the place and time of occurrence is prima-facie established by documentary as well as oral evidence as also his active participation in commission of crime. The learned Additional Sessions Judge granted the anticipatory bail on extraneous consideration depriving the police to recover the weapon of offence i.e. axe which is material in the trial of the case.
17. In Adri Dharan Das v. State of W.B. (supra) Hon’ble Supreme Court further held that ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. Therefore, it cannot be said that the accused respondent might have falsely been implicated or there was reasonable grounds for holding that the person is likely to otherwise misuse the liberty. The power under Section 438 are in somewhat extraordinary in character and are to be only exercised in exceptional cases.
18. Viewed from any stand point, the case in hand so far as accused respondent No. 2 is concerned, cannot be said to be an exceptional case warranting bail under Section 438 Cr.P.C. and as also the accused respondent No. 2 has misused the liberty granted to him by threatening the witnesses even after having been bound down by the Executive Magistrate to maintain peace and tranquility and repeated the similar nature of acts and even making attempts one after another tampering with the evidence. In these circumstances, therefore, in my view the order impugned cannot be sustained and is liable to be set aside and the bail granted under Section 438 Cr.P.C. to the accused respondent No. 2 deserves to be cancelled.
19. In view of the aforesaid discussion, the application for cancellation of bail is allowed and the order impugned dated 15.11.2007 granting anticipatory bail to accused respondent No. 2 Rajinder Kumar S/o Mani Ram is hereby set aside and bail bonds if submitted by him stand cancelled and he is directed to surrender forthwith before the Investigating Officer for further investigation and if the accused respondent No. 2 fails to surrender, it will be open for the Investigating Officer to effect his arrest and proceed with the investigation of the case.
