Karnataka High Court
N. Scmasekhar vs State Of Karnataka on 18 November, 1991
Equivalent citations: ILR1992KAR754
ORDER Hanumanthappa, J.
1. Before filing charge-sheet a petition under Section 439 Cr.P.C. was filed before the Principal Sessions Judge, Mysore, requesting for the release of the petitioner. But the learned Sessions Judge rejected the same on the grounds that the prosecution has made out a prima facie case against the petitioner to arrive at a conclusion that there are reasonable grounds for believing that the accused is guilty of the offence of murder punishable with death or imprisonment for life and thus refused to grant bail for the following reasons:
(a) That the petitioner/accused at the time of investigation threatened the material witness, viz., the then Investigating Officer;
(b) That the petitioner/accused made wild allegations against the then Police Commissioner;
(c) That, if the petitioner is released on bail, he being a senior Police officer may tamper with the prosecution evidence;
(d) That, since the investigation is in progress, it is not proper to release him on bail.
Hence this second petition under Section 439 Cr.P.C. was fifed before this Court seeking release of the petitioner for the offences punishable under Sections 302, 201, and 506 I.P.C. alleged to have been committed by him.
2. The practice of this Court in disposing of such petitions is by taking into consideration whether a prima facie case has been made out either to refuse or to grant bail. This Court suggested both sides time and again not to go for elaborate documentation and not to request to dissect the evidence collected either in favour of or against such petitions. But, unfortunately, in the instant case, unmindful of this normal practice, both sides proceeded to argue the case taking the Court through each and every minute aspect, as when the petition was taken up for hearing the prosecution had filed its charge-sheet and copy of the same was made available to the Court for perusal. As requested by both sides, to see that justice not only is done but also seen to have done, having no other alternative, this Court had to hear both sides at length and to peruse important evidence collected and produced by the prosecution. Both sides argued the case on 5 hearing dates in piece-meal at the rate of 1 - 1 1/2 hours on every hearing date. In support of their rival contentions, both sides relied upon several Decisions of this Court, the Supreme Court and other High Courts particularly touching the points to be weighed at the time of considering application for bail. In view of the peculiar circumstances explained, in spite of the procedure being settled, this Court had to hear both sides in detail. Otherwise, the parties may feel that their view points were not considered or the relevant material either in support of or against the application were not considered.
When arguments concluded, certain developments took place that the mother of the deceased sent telegrams and letters requesting the Court to transfer the case. As the allegations were vague and were in the nature of clearly interfering with course of Justice, after discussing with the learned Counsel on both sides, separate order dated 12-11-1991 was passed rejecting the said request.
3. The case of the prosecution is as follows:
One Ganesh, Police Sub Inspector of Nazarbad Police Station, Mysore City, registered a case on 7-4-1991 at 5.15 P.M. in UDR. No. 17 of 1991 under Section 174 CrP.C. on the complaint of Smt. Inderjeet Malik, Incharge General Manager of the Lalitha Mahal Palace Hotel, Mysore. The covering letter of Mrs. Inderjeet Malik and the report of the Swimming Pool Life Guard of the Hotel by name P.K. Uthappa read thus:
Covering letter of Mrs. Inderjet Malik:
Mysore 07 Apr 91 To, The Sub Inspector of Police (L & O) Nazarbad Police Station, Mysore.
SUBJECT: REPORT OF MY LIFE GUARD (SWIMMING POOL) REGARDING DEATH OF UNKNOWN PERSON AT THE HOTEL SWIMMING POOL.
With reference to the above, I am to inform you that around 5 p.m., I was informed by the Swimming Pool Life Guard of our Hotel, that an unknown person has died as a result of drowning in the Hotel Swimming pool and his body has been taken out and kept near the swimming pool.
The report of the life guard is also enclosed for your kind needful.
I request you to kindly take further necessary legal action in this regard, and please oblige.
Kindly acknowledge receipt of this report to you.
Thanking you, Yours sincerely, Sd/-(Mrs. Inderjeet Malik), General Manager, Ashok Radisson Lalitha Palace Hotel, Mysore.
Encl: as stated."
The report given by P.K. Uthappa to the General Manager of the Hotel:
07.04.91 MYSORE.
From:
P.K. Uthappa, S. Pool Attendant/ Life Guard Lalitha Mahal Palace Hotel Mysore - 570 001.
To:
The General Manager, Ashok Radisson Lalitha Palace Hotel, Mysore - 570 011.
Respected Madam, At 5 PM, while I was in the Swimming pool with some of the members and few children, I suddenly saw someone coming from the Tennis Court side and straight away jumping into the swimming pool in the deeper side. This man was straight drowning I ran towards the deep side and called the help of the other staff members namely Shri I S S Chhettri Shri Sadhuvan and Shri Peter Furtade, who immediately came with me and jumped into the swimming pool and removed him to the surface and gave him First Aid, like artificial breathing and other First Aid for which we are trained, but he did not revive.
The Doctor was informed immediately and within 10 mints, the Doctor arrived and after examination on him, he pronounced him dead.
I do not know the identity of this person. His clothes and other belongings appear to be lying near the Tennis Court side of the Swimming Pool.
This is for your kind information and necessary action.
Sd/-
(P.K. UTHAPPA)."
4. On the basis of the said complaint, inquest was conducted between 5.20 and 7.00 p.m. on the dead body of the deceased. During the inquest proceedings, statements of the following persons were recorded:
(i) Sri. Peter Furtado who spoke about the lifting of the dead body from the pool.
(i) Sri. P.K. Uthappa, Life Guard of the Swimming Pool, who corroborated the statement in the FIR already given to Mrs. Indrajeet Malik. After the inquest, the body was shifted to the Mortuary and thereafter the Police Sub Inspector, Sri. Ganesh, secured the blood relatives and examined the following persons, viz., M.R. Ranganath, M.R. Ramesh, Chinnappa and Miss. Kalpana and nephew of Mr. Ranganath.
5. On 8-4-1991 Dr. P. Shenoy of Government Medical College, Mysore, conducted Post Mortem Examination on the dead body from 11.45 a.m. to 1.30 p.m. and handed over the dead body to Mr. M.R. Ranganath. On the same day, Sri. Ganesh, the Sub Inspector of Police, examined his son Ajai and recorded his statement. In the statement, he stated the presence of the accused and his family members. On 9-4-1991 the Police Sub Inspector, Sri Ganesh, received the Post Mortem Examination Report bearing No. 220/91. But he sought some clarification from Dr. Shenoy. On 10-4-1991, Ganesh, Sub inspector of Police, visited the Government Medical College and contacted Dr. Shenoy. Dr. Shenoy then informed him that he would give his opinion on 11-4-1991. On 11-4-1991 Ganesh, Sub Inspector of Police, received the opinion from Dr. Shenoy about the death of the deceased. The relevant portion of the opinion reads as under:
"After perusal of the P.M.Report, I am of the opinion as follows.
I. Under the circumstances explained in your requisition, the injuries mentioned in the P.M.report (over the neck, tooth, left side of nose and cheek) could be caused by the person coming into contact with a hard and rough surface such as the sides of a swimming pool or the water pipes inside it.."
On 16-4-1991 Ganesh, Sub Inspector of Police, prepared the report to send the viscera to the Forensic Science Laboratory. The investigation stopped at that stage.
6. On 25-4-1991 at about 11.30 p.m. Smt M.R. Lalitha, mother of the deceased Sathyadev who is arrayed as C.W.1 in the Charge-sheet got prepared a complaint which was presented by her relative M.R. Ranganath to Nazarbad Police alleging that she suspects about her son's death by the attendants of the Swimming Pool and by those persons who were swimming in the Swimming Pool. Further she alleged in the complaint that she could not lodge the complaint from 7-4-1991 till 25-4-1991 as she was upset. The Kannada version of the said complaint is extracted hereunder:
7. The Nazarbad Police registered the complaint lodged by Smt. M.R. Lalitha in Crime No. 112 of 1991 for offences punishable under Sections 302 and 201 I.P.C. On the basis of the said complaint one Ifthikar Mohammed, Circle Inspector of Police, took up further investigation. On 26-4-1991 he recorded the statements of (i) Peter Furtado and (ii) I.S.S.Chhettri. On the next day, i.e., on 27-4-1991 he recorded the statements of (i) Sadhuvan (ii) P.K. Uthappa and (iii) Elisha. On 3-5-1991 he examined one Kusmakara Shetty of Canara Bank who spoke about the presence of the accused/petitioner and his family members in the Swimming Pool on the date of the alleged incident. On 27-4-1991 the Investigating Officer recorded the statement of P.K. Uthappa as C.W.2 who stated similar to the version as already given in writing, i.e., the complaint registered as UDR. 17 of 1991.
8. On 10-5-1991 further investigation of the case was taken over by the C.O.D. from the hands of Iftikhar Mohammed, the then Investigating Officer. After taking over the investigation, the C.O.D. recorded the statements of witnesses mentioned in the charge-sheet. Among them, the statements of the following witnesses are relevant for the present purpose:
(a) C.W.1 - Smt. M.R. Lalitha;
(b) C.W.2 - Sri. P.K. Uthappa:
(c) C.W.3 - Mrs. Indrajeet Malik;
(d) C.W.4 - Mr. Ajai;
(e) C.W.5 - H.K. Srikanth;
(f) C.W.6 - Elisha;
(g) C.W.25 - Dr. Shenoy;
(h) C.W.28 - M.R. Ranganath;
(i) C.W.41 - Shamanthakamani;
(j) C.W.42 - Mr. Suraj;
(k) C.W.71 - Ganesh (P.S.I)
(l) C.W.81 - Ifthikar Mohammed;
(m) C.W.82 - Dastikop
(n) C.W.83 - K.L. Sudheer and
(o) C.W.84 - Surat Prasad.
According to the prosecution, C.W.2 - P.K. Uthappa, C.W.4 - Ajai, C.W.5 - H.K. Srikanth, C.W.6 - Elisha, C.W.41 - Shamanthakamani and C.W.42 - Suraj are the eye witnesses to the incident whose statements were recorded by the C.O.D. on 10-5-1991, 11-5-1991, 12-5-1991, 4-6-1991 and 29-6-1991 respectively. Further case of the prosecution is that, after recording the statements of other witnesses on different dates and on the basis of the letters alleged to have been written by the Investigating Officer, Iftikhar Mohammed, including Dastikop - C.W.82 - the Assistant Commissioner of Police and the statement of K.L. Sudheer - C.W.83 - and Surat Prasad - C.W.84 - the then Commissioner of Police, connected the petitioner to the offences alleged. The petitioner was arrested on 5-6-1991 and he was produced before the III Additional Chief Metropolitan Magistrate on 6-6-1991.
9. On the basis of the above material collected which is relevant coupled with the corroborating evidence, the prosecution submits that the death of Sathyadev was not by drowning but it was a murder alleged to have been committed by the petitioner.
10. Whereas, the petitioner denies the same. According to the learned Counsel for the petitioner, the petitioner is innocent of the guilt accused. Even if the entire material collected and produced by the prosecution is accepted as correct, at best, the same can be attributable to an offence punishable under Section 304 Part II and not under Section 302 I.P.C. He submits that there is nothing appears from the material collected that there are any reasonable grounds to believe that the petitioner has committed an offence punishable either with death or imprisonment for life. According to the learned Counsel for the petitioner, there was misunderstanding between the accused/petitioner and his superiors, viz., Surat Prasad - C.W.84 - the then Commissioner of Police. Hence, a false case has been foisted at the instance of C.W.84. According to him, the following circumstances falsify the story of the prosecution:
(i) On the basis of the complaint dated 7-4-1991 investigation was done from 7-4-1991 to 16-4-1991 and ended in registering a case as UDR 17 of 91 under Section 174 Cr.P.C.;
(ii) From 16-4-1991 to 25-4-1991 no progress was made in the investigation;
(iii) No explanation is forthcoming as to why the relatives of the deceased, viz., C.W.1 - the mother of the deceased, and others were silent from 7-4-1991 to 11.30 p.m. of 25-4-1991 without making any complaint or at least they could have made an attempt to know from the persons incharge of the swimming pool how the death of the deceased was caused;
(iv) From 25-4-1991 to 8-4-1991 the then Investigating Officer, viz., Iftikhar Mohammed, held investigation. He even recorded the statement of C.W.4 - Ajai whose statement does not connect the petitioner to the offence alleged;
(v) On 26-4-1991 the case of the prosecution is that Uthappa approached the Commissioner of Police for help. But, he did not say anything against the petitioner. On 27-4-1991 when Uthappa was examined by the Investigating Officer, Ifthikar Mohammed, he did not say anything against the accused/petitioner.
11. From 10-5-1991 the date on which the C.O.D. took up investigation and the date on which the petitioner was arrested, the C.O.D. recorded once again the statements of C.W.4 and others, viz., C.W.2, C.W.5, C.W.6, C.W.41 and C.W.42, who, according to the prosecution are the eye witnesses to the alleged incident. From the statements recorded by the C.O.D. from 10-5-1991 and onwards the prosecution attempted to make out the presence of the petitioner and other 5 persons including the deceased who was laughing and teasing at C.W.41 Shamanthakamani, wife of the petitioner, who was in swimming costume. Then the petitioner warned the deceased to come out from the swimming pool. He also questioned that why he is laughing at his wife. He received the reply from the deceased to the effect that he is not laughing at her and he is playing with other C.Ws. Then the petitioner provoked and assaulted the deceased by giving blows. As a result of the said blows, the deceased drowned in the water and he did not come out. The learned Counsel for the petitioner submits that this story cannot be believed. He further submits that this is a clear case of deliberate construction. Because in the story told by the prosecution there are contradictions and inconsistencies, in that C.W.2 Uthappa says that the petitioner gave one blow on the neck of the deceased; whereas C.W.4 Ajai says that the petitioner gave 3 blows - one on the shoulder, one on the face and the third on the left side neck. C.W.5 Srikanth corroborates C.W.4, while C.W.6 Elisha says that he saw only the deceased drowning. Likewise, C.W.41 and C.W.42 - Smt. Shamanthakamani and Suraj, wife and son of the petitioner repectively. According to the Counsel for the petitioner, if really the petitioner had caused death of Sathyadev, there was no reason for him to ask C.W.2 and other witnesses to remove the body of the deceased and also to help them in lifting the dead body from the swimming pool and then to ask the concerned to contact the concerned P.S.I. and to direct him to get the doctor. If the petitioner had any such intention to cause death of the deceased, he would not have asked others in the Pool or the concerned to bring rope and ask them to remove the body.
12. From these material, according to the petitioner's Counsel, it is a clear case of death of drowning. He submits that the case foisted is a false one. Because one more circumstance which probabilise the same is that the C.O.D. did not write the Case Diary till 9-6-1991. That apart, on the relevant date the petitioner was not on duty but he was on leave and was also not in Mysore. Further, the so called post-arrest cases are made with an ill-intention of discrediting the conduct of the petitioner. For example, Crime No. 94 of 1991 came to be registered in K.R. Puram Police Station, Mysore, on 28-5-1991. Further, Crime No. 134 of 1991 came to be registered in Subramanyanagar Police Station, Bangalore. On 16-7-1991 a case came to be registered in crime No. 175 of 1991 alleging that the petitioner used defamatory words against the Police Commissioner. According to the petitioner's Counsel, the so-called theory of C.W.2, 4 and 42 who according to the prosecution witnessed the alleged incident came to be introduced after 2 months from the date of the alleged incident It is also incorrect to say that at any time the petitioner made an attempt either to interfere in the progress of the investigation or attempted to tamper with the prosecution evidence. According to him, the so-called statements recorded by Ifthikar Mohamed on 28-4-1991, 29-4-1991 and 30-4-1991 are baseless. The statements alleged to have been made by the relatives of the deceased so also Ifthikar Mohamed the Investigating Officer who is C.W.81; Sudheer C.W.83, etc. about the threat held out by the petitioner to the Police Commissioner Surat Prasad are again baseless and selfserving. Allegations made by the Police Commissioner on 2-5-1991 to the Director General of Police and his another letter dated 4-5-1991 are aimed at the petitioner's character assasination. Even the allegations made in the letters alleged to have been submitted by the Police Commissioner are accepted as correct, the same do not directly connect the petitioner to the offence alleged. For the above reasons, the Counsel for the petitioner submits that it is a clear case of concoction. As such, the petitioner is entitled for release.
13. As an alternative, the argument of the learned Counsel is accepted as correct, the same at best can be connected to an offence punishable under Section 304 Part II and not an offence punishable under Section 302. Because as told by the prosecution witnesses the deceased Sathyadev was teasing at C.W.41 and laughing at her when she was in the swimming pool in Swim costume. Inspite of petitioner warning the deceased to come out from the swimming pool, he persisted in staying in the swimming pool and continued to look at C.W.41, Shamanthakamani, which act provoked the petitioner to give one blow without knowing that such blow to the deceased would cause death. Thus he submits that at best the offence alleged be said as one punishable either under Section 323 or 304 Part II and not under Section 302 I.P.C.
14. In support of the above contentions that in such circumstances any assault or blow resulting in death cannot be connected to the office punishable under Section 302 I.P.C but it is only to Section 323 or 304 Part II, the learned Counsel for the petitioner relies upon the following authorities:
(1) A.I.R. 1060 Kerala 199 (V 47 C 91), Urmese v. State of Kerala, wherein it is held thus:
"Where the accused gave only one blow with his open hand on the neck of the deceased, while they were facing each other, causing fracture of vertebrae, unconsciousness resulting in death and the blow was not followed by other acts of violence nor was any weapon used:
Held that so long as the intention or knowledge to cause grievous hurt has not been proved, the offence was only one under Section 323, even though, death ensued. (Conviction altered from Section 304 Part 2 to one under S. 323IPC)"
(2) 1964(1) Mys.L.J., 545, Mohammed Ghouse @ Bombay Ghouse v. State of Mysore where in this Court held as follows:
"Where the accused and deceased were utter strangers to each other, there was no motive for accused to commit the offence, there was no previous ill-will between them and it was in a sudden quarrel that ensued on account of the rude behaviour of the accused to which the deceased took objection and a fight between them took place that accused inflicted four injuries as a result of which the deceased died on the spot, held, the offence committed fell under Exception 4 to Section 300 and amounted to an offence of culpable homicide not amounting to murder."
(3) In , Laxman Kalu Nikalje v. State of Maharashtra the Supreme Court held as under:
"In a case the evidence disclosed the following facts. The injury inflicted on the person of the deceased was a single one. The eye-witness did not speak about the weapon but she only said that the accused hit the victim with a weapon and ran away. Though the injury was a serious one in that it had cut the auxiliary artery and veins, it was not on the vital part of the chest and had not reached the lungs. The incident itself took place, presumably, as a result of quarrel over the subject as to when the accused could take his wife back home.
Held that the case did not satisfy the requirements under Section 300 of the Penal Code since it could not be said that death was intended. The case also could not come under the first and the second parts of Section 299 for the same reason. The matter fell under the third part of Section 299 since the accused had the knowledge that his act was likely to cause the death of the victim. The High Court's order convicting him under Sec.300 was set aside."
(4) In , Shankar v. State of Madhya Pradesh the Supreme Court held as thus:
"PENAL CODE (45 of 1860), Ss 300 and 304 Part II - Murder trial - Conviction under Section 302 changed to one under Section 304 Part II in view of facts. Decision of Madhya Pradesh High Court, reversed.
Death on account of dagger injury caused on the neck. Occurrence taking place without any premeditation while the deceased along with the accused and others had finished meals. Accused, held, could not be said to have any intention to cause the particular injury on the vital part - Accused, however, must be deemed to have knowledge that death might be caused by his action. Conviction under Section 302 was liable to be changed to one under Section 304 Part II. Decision of Madhya Pradesh High Court reversed."
(5) , Kulwant Rai v. State of Punjab wherein the Supreme Court held as follows:
"Penal Code(1860), Section 30 C1. Thirdly; Section 304 Part II -Applicability - Short quarrel followed by assault - Accused giving the deceased one blow with a dagger that landed in epigastrium area - Victim succumbing to injury - Absence of prior enmity -There being no intention on part of accused to cause injury in question, C1. Thirdly of Section 300 would not be attracted - case would fail under Section 304 Part II."
(6) In , Hari Ram v. State of Haryana the Supreme Court held thus:
"Where in the heat of altercation between the deceased on one hand and the accused on the other, the accused seized a jelli and thrust it into the chest of the deceased and it was preceded by his remark that the deceased must be beaten to make him behave and only one blow was struck by the accused at the deceased.
Held, that on the evidence it does not appear that there was any intention to kill the deceased and therefore the conviction under Section 302 cannot be sustained and that, on the contrary, the facts make out an offence under the second part of Section 304. Cri.A.No. 597 of 1972 dated 24-2-1975 (Punj & Har.) Partly reversed."
(7) In , Jawahar Lal and Anr. v. State of Punjab the Supreme Court held as under:
"Where the accused, the immature boy aged about 19 years, in the background of the trivial quarrel, with 'A, had given a solitary blow of knife to the deceased which fell on his chest, the accused had no malice against the deceased, he had no quarrel with the deceased and the accused did not make any attempt at giving second blow in the dim light available at the time of concurrence, the accused could not be said to have intention to cause that particular injury. Even if the injury proved to be fatal, the case would not be covered by Section 300, Para 3. However, since the accused could be attributed the knowledge that he was likely to cause an injury which was likely to cause death, the accused could be convicted under Section 304, Part II and not under Section 302. Cri. Appeal; No. 381 of 1981 D/- 27-11-1981 (Punj. & Har.) Reversed. Case law discussed."
(8) In 1988(1) CRIMES 251, Dev Narain Pandey v. State (Delhi Admn.) the Delhi High Court held as under:
"Indian Penal Code, 1960 - Section 304, Parts I and II -Conviction under section 304 Part I - Appeal against - deceased intervened to resolve a dispute between the appellant and his neighbouring shopkeeper - Appellant objected - Deceased is alleged to have slapped him - took a milk can called 'Panseri' and hit the same on the back of the deceased - Deceased fell down -Appellant again hit him on his forehead - No enmity on record between appellant and deceased before this incident -Prosecution witnesses are all disinterested and truthful - What is the nature of the offence committed by the appellant?- (Appellant is guilty of an offence under section 304, Part II of the Code). What sentence is to be imposed? (Sentence of imprisonment of one year already undergone by him and also a fine of Rs. 2500) (Para 8)."
(9) , State of Karnataka v. Shivalingaiah this Court held as follows therein:
"Penal Code (45 of 1860), Sections 300 Clause Thirdly, 304 Part II, 320, 325, 323 - Squeezing testicles of victim resulting in his death - Incident taking place suddenly and on spur of moment -intention to cause death could not be attributed - Sections 300 Clause Thirdly and 304 Part II not attracted. Accused convicted for causing grievous hurt and not simple hurt.
Where an accused squeezed the testicles of a victim resulting in his death almost instantaneously and the incident took place all of a sudden and on the spur of the moment, it could not be said that the accused had any intention of causing the death of the deceased when he committed the act in question nor could he be attributed with knowledge that such act was likely to cause his cardiac arrest resulting in his death. The Supreme Court, however, made it clear that it cannot be that in all circumstances such an act would not be covered by clause, Thirdly of Section 300 and therefore amount to culpable homicide amounting to murder punishable under Section 302 or culpable homicide not amounting to murder punishable under Section 302 Part II. It all depends on the facts and circumstances of each case whether the accused had the requisite intention or knowledge. The act of the accused in the instant case would not amount to culpable homicide amounting to murder or not amounting to murder punishable under Section 302 or Section 304 Part II. The act of squeezing testicles is dangerous to human life. It can lead to cardiac arrest, such an act would clearly be covered by Section 320 of the Penal Code and therefore amount to grievous hurt punishable under Section 325, Penal Code, Conviction of accused for the offence of voluntarily causing simple hurt punishable under Section 323 would not be proper."
(10) In 1989 Supreme Court Cases (Cri), 123, Ram Lal and Anr. v. State of Punjab the Supreme Court held as under:
"Penal Code, 1860 - Section 302 or Section 304 -Accused going unarmed to cobbler's shop to pressurise the shopkeeper to vacate the premises and after a heated/verbal exchange picking up a rambi tying in the shop and inflicting one blow with it which landed on vital part of the body causing death of the shopkeeper - Held, incident occurred on spur of the moment and in heat of passion - Hence conviction under Section 302 altered to that under Section 304, Part I with sentence of 8 years' RI."
(11) In , Surinder Kumar v. Union Territory, Chandigargh the Supreme Court held thus:
"The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly."
(12) In , Hem Raj v. The State (Delhi Admn.) the Supreme Court held as follows:
"In our considered view, a true and accurate version of the prosecution as to the origin of genesis of the occurence is not brought out clearly. Nonetheless, it inferable from the circumstances that the occurrence had happened in a spur of moment and in the heat of passion upon a sudden quarrel. The above inference is fortified by the admission of PW17 admitting that both the appellants and the deceased suddenly grappled each other and the entire occurrence was over within a minute. Thus, it is clear that it was during the course of the sudden quarrel the appellant gave a single stab which unfortunately landed on the chest of the deceased causing an injury which in the opinion of the Medical Officer was sufficient in the ordinary course of nature to cause death.
The question is whether the appellant could be said to have caused that particular injury with the intention of causing death of the deceased. As the totality of the established facts and circumstances do show that the occurence had happened most unexpectedly in a sudden quarrel and without pre-meditation during the course of which the appellant caused a solitary injury, he could not be imputed with the intention to cause death of the deceased or with the intention to cause that particular fatal injury; but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. Because in the absence of any positive proof that the appellant caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death, neither Clause I nor Clause III of Section 300, IPC will be attracted. We are supported in this view by a series of decisions of this Court, namely, (1) Jagrup Singh v. State of Haryana , (2) Kulwant Raj v. State of Punjab , (3) Randhir Singh v. State of Punjab , (4) Gurmail Singh v. State of Punjab . (5) Jagtar Singh v. State of Punjab Following the ratio of the aforementioned decisions, we hold in the present case that the offence committed by the appellant is the one punishable under Section 304, Part II, IPC but not under Section 302 IPC."
15. According to the learned Counsel for the petitioner it is unsafe to connect an innocent person to an offence as appeared in a news paper. His contention is that the news appeared in the news paper shall not be looked into. For this proposition he relies upon, a Decision of the Supreme Court in LAXMI RAJ SHETTY AND ANR. v. STATE OF TAMIL NADU, . The Supreme Court held thus:
"Judicial notice cannot be taken of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the document referred to in Section 78(2) of the Evidence Act by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein. A statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported. Rel.on."
16. For the proposition that previous involvement in criminal cases and his desparate character are not grounds for refusing the bail, the learned Counsel for the petitioner relies upon a Decision of Manipur High Court reported in 1964(2) Crl. L.J., 307 (Vol.69 C.No. 91)=AIR 1964 Manipur 39 (V 51 C.18), R.K. Nabachandra Singh v. Manipur Admn.. It reads thus:
"Criminal P.C.(1898), Section 497(5) - Application for setting aside bail - Previous involvement of accused in criminal case and his desparate character are no grounds for refusing bail.
Cases referred: Courtwise Chronological Paras.
(55) , State v. Ram Autar Chaudhry.
(63) AIR 1963 Manipur 12 (V 50): 1963 (1) Cri LJ 451, Gaibidingpao Kabui v. Union Territory of Manipur."
17. For the proposition that infirmities in the F.I.R. namely, delay in recording statements or submitting F.I.R. is very fatal and the same will go in favour of the accused, learned Counsel for the petitioner relies upon a Decision of the Supreme Court in STATE OF ORISSA v. MR. BRAHMANANDANANDA, wherein the Supreme Court held thus:
"Where in a murder case the entire prosecution case depended on the evidence of a person claiming to be eye-witness and this witness did not disclose the name of the assilant for a day and a half after the incident and the explanation offered for non-disclosure was unbelievable, held that such non-disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness and that the High Court was correct in rejecting it as untrustworthy and acquitting the accused. [(1971)1 Cut WR 351. Affirmed]."
18. For the proposition that proof of guilty conscious conduct of accused is not relevant, the learned Counsel relies upon a Decision of the Madras High Court in RE MARUDAI PRISONER, AIR 1960 Madras 370 : 1960 Cri.LJ. 1102 (1st Accused). The Madras High Court held thus:
"Criminal Trial - Proof of guilt - Murder - Guilt-conscious conduct of accused.
When rumours are afloat connecting a man with a grave and brutal murder, a quite innocent man may behave very foolishly, quite like a guilty one. He may attempt to fabricate some evidence, in order to see that he is not made to undergo the torture and suspense of a trial for murder. Such apparently guilt-conscious conduct should not be heavily weighed against an accused, particularly where the identification itself is a matter of doubt."
19. For the proposition that where police has fabricated the evidence, no reliance be placed, learned Counsel relies upon a Decision of Madhya Pradesh High Court in STATE OF MADHYA PRADESH v. BABULAL RAMRATAN AND ORS., AIR 1958 Madhya Pradesh 55 which reads thus:
"Penal Code (1860), Section 192 - Police fabricating evidence.
The police are too often tempted to introduce padding in a case in their over-zealousness to establish a charge, which they believe to be true in support of which the evidence in their possession is weak. But this practice has to be condemned in no uncertain terms. AIR 1936 Lah 330 Rel. on."
20. Further proposition that oral utterances of the accused not a ground to infer an offence against accused, the learned Counsel for the petitioner relies upon a Decision of the Bhopal High Court in MOOLCHAND AND ORS. v. THE STATE, AIR 1955 Bhopal 9 wherein it was held thus:
"An object is entertained in the human mind and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom.
Mere words or utterances in excitement are not enough to indicate the oral mental attitude and it is the act committed and result therefrom that are the main features, though in every case the result alone does not necessarily indicate the attitude of the mind of the doer of the act."
21. The learned Counsel for the petitioner also relies upon unreported Decisions of this Court decided in the following Cases, of course, which are not so relevant except in one decided in Criminal Petition No. 550 of 1991 decided on 24-6-1991, Kumar v. State of Karnataka where the offence alleged was one punishable under Section 302 IPC. Yet, bail granted to the accused for the following reasons, viz.,
i) Non-examination of important eye-witnesses;
ii) Delay in recording statement of some of the witnesses.
Other three unreported Cases which the Counsel relies upon are:
a) Criminal Petitions Nos. 730, 731 and 746 of 1989 decided on 30-8-1989, M. Bhaktavathsalam v. State
b) Criminal Petition No. 1564 of 1990 decided on 4-2-1991, Satish Shetty v. State of Karnatka
c) Criminal Petition No. 86 of 1991 decided on 14-2-1991, Bhimappa Fakirappa Lalagatti and Ors. v. State of Karnataka.
22. Thus, according to the learned Counsel for the petitioner, considerations to be weighed while granging or refusing bail are:
A) In the event of release whether the accused will be readily available to take trial or accept sentence;
B) If released, whether are there chances of accused fleeing from justice;
C) In case of release, whether accused would attempt to tamper with prosecution evidence.
In support of the above contentions, he relies upon the following Decisions:
AIR 1978 Supreme Court, 179, Gurucharan Singh and Ors. v. State (Delhi Admn.) wherein it was held -
"Section 439(1), on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1). The overriding considerations in granting bail which are common both in the case of Section 437(1) and Section 439(1) are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offences of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the 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. The two paramount considerations, viz., likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair trial of the case in a Court of justice. It is essential that due and proper weight should be bestowed on these two factors apart from others."
In GUDIKANTI NARASIMHULU AND ORS. v. PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH, the Supreme Court held thus:
"Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the court into a complacent refusal."
In BHAGIRATHSINH JUDEJA v. STATE OF GUJARAT, the Supreme Court held as follows:
"In our opinion, the learned Judge appears to have misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary order made by the learned Sessions Judge. One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by him that the victim attacked was a social and political worker and therefore the accused should not be granted bail but we fail to appreciate how that circumstance should be considered so overriding as to permit interference with a discretionary order of the learned Sessions Judge granting bail. The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances are necessary ;for an order seeking cancellation of the bail. And the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and Whether he is likely to abuse the discretion granted in his favour by tampering with evidence. The order made by the High Court is conspicuous by its silence on these two relevant considerations. It is for these reasons that we consider in the interest of justice a compelling necessity to interefere with the order made by the High Court."
For the reasons given above, the learned Counsel for the petitioner submits that this application be allowed ordering to release the petitioner on bail on such terms as the Court feel just and reasonable.
23. As an answer to these contentions, the learned State Public Prosecutor submits that there is no merit in any one of the contentions raised by the learned Counsel for the petitioner in support of the application filed under Section 439 Cr.P.C. According to him, first he filed an application before the Chief Judicial Magistrate, Mysore, under Section 437 Cr.P.C. for his release which was rejected on 27-6-1991. Again he preferred an application under Section 439 Cr.P.C before the Sessions Judge, Mysore, which also came to be rejected on 25.7.1991. In the present application filed before this Court, the petitioner has not made out any new grounds. According to the learned State Public Prosecutor the ill-health pleaded by the petitioner before the Courts below has been now given up. He submits that the charge sheet filed by the prosecution a case has been made out for an offence punishable under Section 302. According to him, it is not a case foisted at the behest of the Police Commissioner. On the other hand, he did nothing against the accused till the C.O.D. took up investigation. Even earlier to register the case against the petitioner, he developed a guilty consciousness and desparately started threatening each and every witness in the case. The letters dated 28.4.1991, 29.4.1991 and 30.4.1991 written by the then Investigating Officer to the Commissioner of Police are sufficient to show that the petitioner has made an attempt to threaten. If the Commissioner of Police is interested in involving the petitioner there was no necessity for him to direct Ifthikar Mohamed alone to conduct the enquiry.
24. If the petitioner was innocent of the guilt accused, there was no necessity for him to request D.C.P.II to take up investigation instead of Ifthikar Mohamed. On the other hand, when it appeared in the newspaper 'Andolona' about the alleged offence, petitioner should have told the Commissioner of Police to change him from the duty. There was no explanation why the petitioner was silent on 25.4.1991 when the conference was held in the chambers of the Police Commissioner and discussion took place about the alleged incident. When the petitioner was near the Swimming Pool at the time of the incident and without causing death of Sathyadev under normal circumstances, he should have been a complainant or a witness instead of Uthappa informing to the effect that a boy who was swimming has drowned in the Swimming Pool. Other incriminating circumstances are, petitioner asking the attendants to bring rope and remove the body. Also sending wireless message to Nazarbad Police Station to bring a person knowing swimming to swimming pool. Also bring a water- lifting motor from Fire Brigade. He submits that if the death was one of mere drowning, it should have been a case 'death of drowning'. Whereas in the opinion of the Doctor his deatn was resultant of cardiac arrest due to 'vagal inhibition'. On 8.4.1991 when autopsy was held it disclosed injuries on the body. The opinion of the Doctor is from pages 15 to 20 of the inquest report. The statements of C.W.2, 4, 5, 6, 41 and 42 establish the presence of the petitioner near the Swimming Pool. Even the statement of C.W.4 - Ajai - made on 8.4.1991 speaks the presence of the petitioner, let alone his subsequent statement. Investigation under the U.D.R. did not reveal the real story of the deceased as fact was suppressed.
25. According to the learned State Public Prosecutor that from the following material it is clear that the prosecution has made out a prima facie case to connect the petitioner to the offence punishable under Section 302 read with Sections 201 and 506 I.P.C .
26. The statements of the following witnesses in the charge sheet speak about the part played by the petitioner in causing death of the deceased Sathyadev. In the statement of Uthappa - C.W.2 - made on 10.5.1991 before the C.O.D. it is stated that the petitioner gave one blow on the face of the deceased. His subsequent statement recorded on 24.6.1991 is also to the same effect. C.Ws. 4 and 5, viz., Ajai and Srikanth, in their statements recorded on 25.6.1991 and 3.5.1991 respectively state that the petitioner gave blows on the face, shoulder and neck of the deceased. Whereas C.W.6 Elisha's statement is to the effect that he saw a person drowning. C.W.41 and 42 - wife and son of the petitioner - whose statements were recorded on 29.5.1991 and 30.5,1991 speak about the presence of the petitioner. The statement of Smt. Inderjeet Malik - C.W.3 - whose statement was recorded on 3.6.1991 also speaks about the presence of the petitioner near the pool on that day. Likewise the other witnesses.
27. The cause of death as per the Doctors' opinion given on 11.4.1991, 14.6.1991 and 9.8.1991 is to the following effect:
Opinion dated 11.4.1991;
"After perusal of the P.M.Report, I am of the opinion as follows:
1. Under the circumstances explained in your requisition, the injuries mentioned in the P.M. report (over the neck, tooth, left side of nose and cheek) could be caused by the person coming into contact with a hard and rough surface such as the sides of a Swimming Pool or the water pipes inside it"
Opinion dated 14.6.1991:
"On examination, I noticed that the swimming pool had following features:
On the north - side of Hotel On the south - Plain ground and Chamundi Hills as background East and West- Lawns, garden and open space.
... ... ... ... ...
Now, after examination of the swimming pool and perusal of the P.M.report cited above, I am of the opinion as follows:
1. The external and internal injuries noted in the P.M.report could not have been caused by the deceased falling into a swimming pool of such a nature as described above.
2. The external and internal injuries noted in the P.M.report were fresh in nature.
3. In a living person if a tooth is broken, clotting of the blood takes place inside the socket within 2 or 3 minutes. Hence, there was no fresh bleeding at the time of P.M. examination.
4. The internal injury on the left side of the neck noted in the P.M.report was fatal injury. Such injury could be caused by a blow with the side of a hand.
5. The internal injury on the left side of the neck noted in the P.M.report could cause the death of a person in the ordinary course of nature.
6. Time lapsed between the infliction of the injury on the neck and death was almost instantaneous.
7. The viscera was preserved for chemical analysis to rule out alcohol.
8. On a thorough macroscopic examination, the internal organs were healthy and did not disclose any disease process."
Opinion dated 9.8.1991:
"After perusal of the above documents, I am of the opinion as follows:
1. No poison was detected in all the above articles (viscera) as per C.E.report No. TS 1638/91 dated 29.7.1991.
2. Further opinion expressed by CE, Bangalore (No. FSL/TS/2214/91-92 dated 31.7.1991) also stated that poisons including alcohol were eliminated.
Hence, after perusal of the above document, I am of the opinion that the deceased died due to cardiac arrest as a result of vagal inhibition consequent upon injury sustained to left side of the neck."
28. Regarding the death, it was due to cardiac arrest of vagal inhibition. Sri. Reddy, learned State Public Prosecutor makes a reference to the definition about Vagal inhibition' as defined in the Forensic Medicine by Dr. K.N. Narayana Reddy. Thus, the death was not due to sudden fall in the water. But, it was a case of murder for the reasons as opined by the Doctor. According to him, these are the reasonable grounds to believe that the petitioner committed an offence punishable under Section 30? and not either under Section 304 Part II or 323 I.P.C. Learned State Public Prosecutor submits that even in the absence of intention mere knowledge to cause death is sufficient to connect a person to the offence punishable under Section 302 IPC. According to the learned State Public Prosecutor, the petitioner had the intention to cause death of the deceased for the following reasons:
The deceased was smiling at C.W.41 Shamanthakamani who was in Swimming costume. The petitioner warned the deceased, but the deceased persisted in his behaviour of teasing. Persistence in smiling at C.W.41 is not to say that under normal circumstances would result in a grave and sudden provocation. The petitioner is expert in unarmed combatant, i.e., Karate tighting. This was the submission of C.W.16 Mandanna in his statement recorded on 27-5-1991 at page 270. The petitioner being a Karate expert would have known the consequences if such a blow is given on the face and neck of the deceased. The petitioner is a responsible officer as such he should not have taken law into his own hands. He should have requested some other authorities to remove the deceased Sathyadev if his look at C.W.41 was so much untolerable. The so-called provocation was neither grave, sudden or reasonable. The petitioner being a superior Police officer, it is not safe to be released. Acts of the petitioner in giving threat to the prosecution witnesses, viz., C.W.2 - Ifthikar Mohamed, the then Investigating Officer - Police Commissioner and saying to D.C.P. - II Sudheer that he has declared war against the Police Commissioner and also tearing out a portion of the Police Commissioner's photo in which both the Police Commissioner and the petitioner were present are important circumstances. Because of bad temperament of the petitioner, it is not proper to release him on bail.
29. The learned State Public Prosecutor submits that the petitioner is also liable for punishment for an offence under Section 201 I.P.C. because there was a concealment of evidence by the petitioner. At the time of inquest, none of the relatives of the deceased were examined. From 7.4.1991 till 10.5.1991 the prosecution tried to conceal entire evidence. The officers were all in the clutches of the accused/petitioner. The petitioner was arrested only on 5.6.1991. When the petitioner is of bad temperament he shall not be released on bail and if he is released on bail definitely he would tamper with prosecution evidence. If the petitioner is released on bail there will be fear psychosis in the minds of the witnesses. According to the learned State Public Prosecutor no doubt a person's liberty is important. But at the sametime administration of Justice is also important. He submits that the death of the deceased Sathyadev was not a death of drowning. But, it is clear case of murder.
30. To sum up, the following are the reasonable grounds which connect the petitioner to the offence:
i) Statements of C.W.4, 5 and 6;
ii) Doctor's opinions on different dates that the death was due to cardiac arrest and vagal inhibition;
iii) Concealing evidence by threatening witnesses; iv) Attempting to prevent the investigation by threatening the Investigating agency;
v) Behaviour of the petitioner at the time of the death of the deceased, viz., contacting the Nazarbad Police as entered in the wireless log book;
vi) Getting upset in the chambers of the D.C.P. vii) Tearing the photo of Police Commissioner;
viii) There was a motive to cause the death of the deceased because deceased was looking at C.W.41 and teasing her;
ix) The offence is definitely punishable under Section 302 and not under Sections 323 or 304 Part II.
x) Causing the death was purely intentional and deliberate and pre-meditated one;
xi) Being superior Police officer instead of taking law into his hands he should have asked somebody near the pool to throw out the deceased from the swimming pool;
xii) Infirmity in the F.I.R., viz., the delay in lodging the complaint not fatal;
xiii) The learned State Public Prosecutor submits that, if the petitioner is released, he would definitely tamper with the prosecution witnesses;
xiv) He also submits that even in the absence of intention, if it is shown that one had the knowledge that a particular act would result in causing death, that is sufficient to connect such a person to the offence now alleged;
xv) According to him, some mistakes in the investigation or other infirmities are not good grounds or factors which shall be weighed to consider the application for bail. The factors to be considered are the gravity of the offence, cruelty, possibility of fleeing from justice in the event of conviction or likelihood of tampering with the prosecution evidence and the presence of the accused would result in creating fear psychosis in the minds of the witnesses.
For these reasons, he submits that no grounds are made out for the release of the petitioner on bail.
31. In support of his contentions, the learned State Public Prosecutor relies upon the following Decisions;
(A) Regarding what are the considerations for bail, the learned State Public Prosecutor relies upon the following Authorities:
(i) 1977 (1) Crl. L.J. 486, Sant Ram v. Kalicharan and Ors. in which the Supreme Court held as follows:
"The Court while granting bail under Section 439 cannot go into the details of evidence to find out whether the evidence will be sufficient in establishing the guilt of the accused beyond reasonable doubt, it being not a relevant consideration at this stage to ascertain the probability of improbability of the prosecution case terminating in the conviction of the accused or not. While deciding a bail application it is not desirable to dissect or pronounce on the evidence otherwise in resorting to such a procedure the Court would be exceeding the limits of its functions. The probability of the guilt or innocence of the accused-persons is not a relevant consideration while dealing with bail applications as the question to determine is whether the prosecution will be able to produce prima facie evidence in support of the charge and not evidence establishing the guilt of the accused persons beyond a reasonable doubt. Case law reviewed."
(ii) In 1982(1) Crl. L.J. 542, A. Prasad v. State of Karnataka the Supreme Court held as follows:
"While considering the application for bail under S.439, Cr.P.C., it is necessary to take into consideration the two basic considerations. The first consideration whether the accused would take up the trial without hampering it and secondly whether he would subject himself to the verdict of the Court. The Court must also consider other factors, such as, the serious nature of the crime alleged to have been committed and the gravity of the circumstances under which such an offence is alleged to have been committed; the position and the status of the accused with reference to the victim and the witnesses; of repeating the offences; of jeopardising his own life being freed with a grim prospect of possible conviction in the case and other relevant grounds.
The Court exercising jurisdiction under Section 439(1) either the Sessions Court or the High Court has got very wide discretionary power to grant bail to the accused person. A plain reading of Section 439 makes it clear that the power under Sub-section (1) of Section 439 is free from the limitations imposed by Section 437(1)."
(iii) In , Shahzad Hasan Khan v. Istiaq Hasan Khan and Anr. the Supreme Court held thus:
"Where the bail application of an accused involved in a case of murder which took place in broad daylight and to which there was a number of eye witnesses was granted on the grounds that there was delay in trial and citizen's liberty was involved but the affidavit filed by the complainant showed that the accused persons obtained adjournment after adjournment on one pretext or the other and they did not allow the court to proceed with the trial and there were also serious allegations of tampering of evidence on behalf of accused persons, the order granting bail was liable to be set aside."
(iv) In (1988) 3 CRIMES 508, State of Gujarath v. Lalji Popat and Ors. the Gujarat High Court held as follows:
"Held, hence taking into consideration the aforesaid observations of the Supreme Court in the decisions mentioned above, it can be said that following factors are the relevant factors which are required to be taken into consideration for deciding bail application:
(1) The nature of the charge is the vital factor and the nature of evidence is also pertinent.
(2) The punishment to which the accused may be liable if convicted.
(3) While considering the question of granting bail under Section 439(1) of the Criminal Procedure Code, the Court should take into consideration the provisions of Section 437(1) inspite of the fact that under Section 439(1) the High and Sessions Court have wide jurisdiction to grant bail.
(4) The nature and gravity of the circumstances in which the offence is committed, say highway robbery or dacoity, gang rape, murder or murders because of group rivalry, attack by one community on other community or such other cases.
(5) The position and the status of the accused with reference to the victim and the witnesses say in case of burning of housewife, witnesses may be neighbours, their evidence might be tampered with by any means.
(6) The reasonable possibility of the presence of the accused not being secured at the trial. Merely because the accused is the owner of large property, movable or immovable, would be no ground to presume that the presence of the accused would be secured at the trial by granting him bail. For this purpose the charge, the nature of evidence by which it is supported and the punishment to which the party would be liable, if convicted, are to be taken into consideration. In cases of highest magnitude of punishment assigned under the law the Court can reasonably presume that no amount of bail was sufficient to secure the presence of convict at the stage of judgment. In some cases accused may leave the country or go underground, in such a manner that it becomes difficult to trace him out.
(7) Any likelihood of tampering with the witnesses.
This also depends on the seriousness of the offence and the nature of evidence. In serious offences if the accused are released on bail, they would be tempted to tamper with the evidence by hook or crook. Therefore, the position and the status of the accused with reference to the victim and the witnesses and the events leading to the incident and the history of the accused are required to be taken into consideration. As observed by the Supreme Court, in regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of the society.
(8) Jeopardising his own life being faced with the grim prospect of possible conviction in the case.
(9) The prospect of victim or his relatives indulging in private retribution who feel helpless and may believe that law may not protect them.
(10) The larger interests of public, society or the State.
(11) Similar other circumstances depending on facts and peculiarity of each case.
Law regarding bail cannot be static and in each case the Court has to decide it on facts of each case and in the interest of justice and fair trial."
(v) In , K. Narayan v. Central Bureau of Investigation this Court held as under:
"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, 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... 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 undeterred 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'.
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 other factors as well to be countenanced by the Court while diposing 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, and 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.
ON FACTS:
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 background of the charge against him. The warrant itself was issued to search and produce the person of that Rasheed who had already become by then 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 alt this tight rope walking was done by this officer. There can be little gain-say in denying that these facts at least 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......Taking into account the foregoing circumstance, it is sufficient to say that for the present a prima facie case has been established... 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 when 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.
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. He has 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 prosecutions case is still said to be under investigation, would not be in the interest of justice."
(vi) In 1991 Crl.L.J., 1298, M.P. Ramesh and Ors. v. State of Karnataka this Court held as under:
"It is well settled by the law laid down by the Supreme Court that personal liberty deprived when bail is refused is too precious a value of our constitutional system recognised under Article 21, that the crucial power to negate it is a great trust and confidence to be exercised, not casually or cursorily but judicially, with great care and circumspection in accordance with the established principles of justice displaying a lively and serious concern of the consequences of the refusal of bail to the individual concerned and the community. The significance and sweep of Article 21 of the Constitution make the deprivation of liberty a matter of grave concern. The deprivation of liberty would be permissible only when the law authorising and sanctioning it is reasonable, even-handed and geared to the obtainment and accomplishment of the good of the community.
Deprivation of liberty by refusing to grant bail is not a measure of punishment or for punitive purposes, but for the interests of justice to the individual concerned and to the society affected."
(vii) In 1984(2) Crl. LJ, 1211, The State (Through Deputy Commissioner of Police, Special Branch), Delhi v. Jaspal Singh Gill the Supreme Court held as under:
"The Court before granting bail in cases involving non-bailable offences particularly where the trial has not yet commenced should take into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other consideration."
(B) Regarding the proposition that the powers of High Court to grant bail are unfettered, the learned State Public Prosecutor relied upon the following authority: viz., 1977 Crl.LJ., 1724 wherein this Court held as follows:
"The Court has to found the question for the grant of bail in the light of such further considerations such as nature and seriousness of the offence, the character of the evidence, the circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interest of the public or State, and similar other circumstances which arise when a Court is asked for bail in a non-bailable offence. Even when the test of 'reasonable ground' as laid down in Section 437 Cr.P.C. has been satisfied and the person found guilty of an offence punishable with death and imprisonment for life, something more is required to be satisfied before he can be released on bail. It cannot be stated that the power of the High Court is unfettered and even if no additional grounds are made out, bail should be granted as a routine. (1962) 1 Cri.LJ. 215 (SC) relied on."
(C) Regarding the discretion of the Court while granting bail, the learned State Public Prosecutor relies upon the Decision of the Madras High Court in STATE v. VEERAPANDY AND ORS., 1979 Cri.LJ. 455 held thus:
" 'Discretion' when applied to court of justice, means 'sound discretion guided by law'. It must be governed by rule, not by humour. It must riot be arbitrary, vague and fanciful, but legal and regular, and in the case of granting bail the discretion of the Judge must be exercised not in opposition to, but in accordance with, the established principles of law. In granting bail, the Judge has to consider whether a prima facie case has been or has not been made out by the prosecution. If a prima facie case has been made out by the prosecution and if there appears reasonable grounds for believing that the person accused has been guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail pending disposal of the case, unless extraordinary circumstances intervene favouring the accused."
(D) Regarding the proposition that the petitioner by his influence may hamper the investigation, the learned State Public Prosecutor relies upon a Decision of this Court in V. SEKAR v. STATE OF KARNATAKA, wherein it is held as follows:
" It can be reasonably concluded, of course tentatively, on the material produced by the prosecution that the major offence alleged against the petitioners would fall under Section 302 and not under Section 330 or 331 IPC .... In highly sensitive case of this nature, the persons seeking anticipatory bail under Section 438 Cr.P.C. are not entitled to that relief as a matter of course.... The applicants who are seeking anticipatory bail, are not illiterate, ignorant and timid citizens inasmuch as, the first petitioner is a Sub-Inspector of Police and the other two are Police Constables who can by their very status wield their influence over the material witnesses required for interrogation and thereby hamper the investigation."
(E) Regarding the proposition that the Court has to find out whether a prima facie case has been made out by the applicant or not, the learned State Public Prosecutor relies upon Notes of Case No. 144 in LAXMAN JARAKIHOLI AND ORS. v. STATE OF KARNATAKA, 1990 Crl.LJ. NOC 144 KANT wherein it is held as under:
"When an application for bail is filed the court has to see only prima facie case. It is not the stage for weighing any evidence and for warching the scale to note which way they tipped"
(E) The learned State Prosecutor also relied upon a Decision of the Madras High Court in S. DHARMAR AND ORS. v. STATE BY THE INSPECTOR OF POLICE, THIIPUVOTTIYUR POLICE STATION AND ORS., 1986 Madras Law Journal 75 regarding non-mention of the name of the accused in the F.I.R. The Madras High Court held thus:
" Criminal Procedure Code (II of 1974), Suspicious death -Grant of bail - considerations - non-mention of the names of accused in the F.I.R. - Does not entitle accused to bail - Status and standing in society - How far relevant.
In case of suspicious death, one cannot expect the First Information Report to contain the entire details leading to the death. In such a case, it is the subsequent investigation that brings to light the complicity of the persons in causing the death of the deceased. Under the circumstances, no inference can be drawn from the First Information Report which is bound to be only an intimation regarding the death.
Status and standing in society of the accused is a double edged weapon so far as bail applications are concerned. It can as well as be argued that with the status and influence in their command, they are likely to influence the witnesses in their favour."
(F) The learned State Public Prosecutor in support of his contention that intention of causing death is not necessary for the offence of murder relies upon the Decision of the Supreme Court in BAKHTAWAR AND ANR. v. THE STATE OF HARYANA, wherein it is held thus:
"For the commission of the offence of murder it is not necessary that the accused should have the intention to cause death. It is now well settled that if it is proved that the accused had the intention to inflict the injuries actually suffered by the victim and such injuries are found to be sufficient in the ordinary course of nature to cause death, the ingredients of Clause 3rdly of Section 300 of the Indian Penal Code are fulfilled and the accused must be held guilty of murder punishable under Section 302 of the Code."
(G) Relying upon the Decision of the Kerala High Court in IYYU AND ANR. v. STATE OF KERALA, 1984(1) Crl.L.J. 494 submitted that for the offences punishable with imprisonment for life bail cannot be granted to the persons of dare devil nature and also involved in other criminal cases.
(H) In support of the contention regarding sudden provocation/the learned State Public Prosecutor relies upon the following Authorities:
(i) 1967(2) MADRAS LAW JOURNAL (CRIMINAL), page 828, Baya Marenna and Anr. v. The State of Andhra Pradesh wherein the Andhra Pradesh High Court held thus:
"In order that Exception 1 to Section 300, Indian Penal Code may apply, there must exist the following four things: Firstly, there must be provocation; secondly, the provocation must be grave and sudden; thirdly, by reason of such grave and sudden provocation the accused must have been deprived of his power of self-control; and finally the death of the person who had given the provocation must have been caused - or of any other person by mistake or accident. It is clear that the provocation has to be not only sudden but grave and the gravity of the provocation is to be judged by the fact whether or not the offender was deprived of the power of self control. In order to find out whether the provocation is grave and sudden the test which usually applied is that of the effect of the provocation on a reasonable man, so that an unusually excitable or pugnatious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In this case, the deceased tried to molest A-1's wife and when he (A-1) was told about it, it must have provided a grave provocation to A-1. If a person is told about the molestation of his wife or any attempt to do so, it would constitute a grave provocation. But merely because there was grave provocation the accused would not be entitled to take advantage of Exception 1. The provocation in order to attract Exception 1 must be sudden as well as grave. If, in view of the circumstances of the case, there was sufficient time to what is called cooling off, then it cannot be said that the provocation was sudden although it may be grave.
Viewed in this light, it cannot be said that there was no time lag between the time when A-1 got the information from his wife or from some others, and the mortal stroke which he had given to the deceased. It may be true that information was received from a reliable person and was believed to be credible as to the existence of a provoking act and yet if he had sufficient opportunity to reflect or deliberate, then it cannot be said that he was acting under grave and sudden provocation. There was sufficient opportunity for him to deliberate or reflect. In such circumstances A-1 cannot take advantage of Exception 1."
(ii) , Mudathamoole Sankappa Rai v. State of Kerala, wherein it is held thus:
" The standard to see whether there was provocation or not must, be the reasonable man's standard. No witness need speak that the accused person was actually provoked. On the other hand, if the words used, coupled with the relationship of the parties and the circumstances of the case, were sufficient to provoke a reasonable man and if the Court thinks that there was such provocation, the absence of witnesses who speak that the accused person was, in fact, provoked is no reason for holding that there was no provocation. If the standard is not the reasonable man's standard then, a person who is short-tempered and who allows himself to be provoked easily will have an advantage in the eye of law over a person who is not so easily provoked and who controls himself and keeps a more equitable temper."
(iii) , Hansa Singh v. State of Punjab wherein the Supreme Court held as follows:
" In this appeal by special leave the appellant has been convicted under Section 302, Indian Penal Code and sentenced to imprisonment for life for having committed the murder of one Gurbachan Singh. According to the prosecution the accused Hansa Singh had suspected the deceased Gurbachan Singh of committing sodomy on his son Haria, which furnished the motive for the murder of Gurbachan Singh. The story of the prosecution is that on the 30th October, 1969 at about 6.00 p.m. when Gurbachan Singh was going to some village and he reached near the house of Gurjit Singh he was surrounded by the accused, some of whom caught hold of him and the appellant Hansa Singh is said to have assaulted him on various parts of the body with his kirpan. F.I.R. was lodged at about 9.00 p.m. at Police Station Mathana, being 7 miles from the village where the occurrence took place. The police visited the spot and after usual investigation, submitted charge-sheet against the accused. The defence was that as the deceased was committing sodomy on Haria, son of the appellant, in his presence, he was greatly annoyed at this act and having lost his power of self-control, he assaulted the deceased. No evidence has been given by the defence in support of his plea. But it seems to us that from the circumstances appearing in the case the defence taken by the appellant is true. It is true that both the High Court and the Sessions Judge have concurrently found that the prosecution case as alleged, has been proved beyond reasonable doubt. Normally this Court would not interfere with these concurrent findings of facts. There are, however, certain striking facts in the case which point to the conclusion that the murder took place near the door of Gurjit Singh and this could have only been done if the story suggested by the appellant Hansa Singh is true. One of the special features of this case is that out of the eye witnesses, one of them Bela Singh who accompanied the informant to the Police Station, was examined after a period of 7-8 months and had narrated the occurrence for the first time before the Committing Magistrate. He was not examined by the police at all and no explanation for this has been given. As regards P.W.Mal Singh and Sita Ram one extraordinary feature is that having seen the occurrence they did not narrate the same to anybody or even to the persons who had gathered at the spot. Both Sita Ram and Mal Singh admit this fact and the only reason for this silence appears to us to be that the witnesses themselves found that the accused had committed the assault in the circumstances related by him, which would undoubtedly mitigate his offence and would also alienate the sympathies of the villagers. Another important circumstance that seeks to support the defence taken by the appellant is that the body was actually found near the door of Gurjit Singh where according to the appellant the deceased was committing sodomy on his son Haria. In order to get rid of this bald fact the prosecution appears to have invented a story that the occurence took place at some distance from the house of Gurjit Singh, who after assaulting the deceased and placed his dead body near the house of Gurjit Singh. The High Court has acquitted all the other accused. And we find it difficult to believe that after having assaulted the deceased, Gurjit Singh alone could have lifted the body and placed it near the door of Gurjit Singh. Gurjit Singh being the own brother of Hansa Singh there could have no motive in taking the body to his house. In these circumstances, therefore, the statement of the accused that the deceased Gurbachan Singh was committing sodomy Haria in the house when the appellant arrived at the scene and assaulted the deceased appears to be true. In view of these circumstances, therefore the prosecution has undoubtedly proved that it was the appellant alone who has assaulted the deceased and this is proved by P.W.Mal Singh and Sita Ram also. The question remains as to what offence the appellant has committed. The learned counsel for the" appellant has taken us through the evidence and shown us a few discrepancies here and there. The evidence appears to be consistent so far as the assault by the appellant on the deceased is concerned. We, however, feel that the occurrence took place while the deceased was committing sodomy on Haria and that gave such a sudden and grave provocation and annoyance to the appellant which impelled him to assualt the deceased. For these reasons we are satisfied that the case of the appellant falls clearly within the purview of Section 304, Part II of the Indian Penal Code. The appellant on seeing the deceased committing the act of sodomy on his son, lost his power and self-control and it was undoubtedly a grave and sudden provocation for him which led him to commit the murderous assault on the deceased. We understand that the appellant has been in jail since 1969 and according to the Code of Criminal Procedure 1973 the period of detention of the accused has to be set off against any sentence which is imposed on the appellant. The position, therefore, is that accused has been in jail for about 7 years. We, therefore, alter the conviction of the accused from one under Section 302 to that under Section 304 Part It of the I.P.C. and we reduce the sentence from life imprisonment to the period already undergone (which is almost 7 years). The appeal is allowed with the modifications indicated above."
32. In view of the circumstances explained above and law governing on the points involved, learned State Public Prosecutor submits that the petitioner has not made out a case for bail. Thus, he seeks for rejecting the bail petition.
33. From the facts narrated, arguments advanced and the authorities relied upon by both sides, now this Court has to see whether the petitioner has made out a case for his release. It is true that both parties have relied upon several factors and made reference to the evidence collected in support of their stand points. But, it is not proper for this Court to dissect the evidence produced. All that has to be seen is whether the prosecution has made out a prima facie case to connect the petitioner to the offence alleged. It is needless to say that time and again the Supreme Court and this Court have cautioned that while considering the application for bail detailed examination of evidence and elaborate documentation should be avoided, as held by the Supreme Court in NIRANJAN SINGH AND ANR. v. PRABHAKAR RAJARAM KHOROTE AND ORS., Santaram v. Kalicharan and Ors. and in T. NARAYANAPPA v. STATE OF MYSORE, 1966(2) Mys.LJ. 94. What is excepted is the Court should weigh the evidence against the accused. Subsequently, this Court took a similar view in the case of MARIAPPA AND ORS. v. STATE OF MYSORE, 1968(1) Mys.LJ. 380 wherein it is observed that while considering the bail application the Court is not required to conduct a preliminary trial of the case but consider the probabilities of the accused being found guilty or innocent.
34. Then, the question will be what are the considerations to be borne in mind while deciding an application for bail in this connection, it is proper to bear in mind the very purpose of bail. Both the Criminal jurisprudence and the Constitution in order to give effect to human rights and personal liberty have declared that deprival of personal liberty is warranted only when it is just and reasonable and permissible in law. Regarding the purpose and effect of bail in Criminal cases it is said in American Jurisprudence, 2nd edition, Vol. 8, on page 784 as follows:
"The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the state of the burden of keeping him, pending the trial, and at the same time to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required. Bail is awarded to one accused, under our system of constitutional government, to honour the presumption of innocence until guilt is proved, and to enable the accused to prepare his defence to the charge. The refusal of bail is not to be used as a weapon for the punishment of a person charged with crime. And it is an abuse of the office of bail to employ an offer of bait to influence a defendant's attitude or action with respect to co-operating with the prosecuting attorney."
From this it is clear, as held in DUDLEY v. UNITED STATES, (CA 5 Tex) 242 F2d 656, thus:
"Admission to bail gives full fealty to the basic principles of freedom, inherent in our system, that an accused is presumed to be innocent until his guilt is established by evidence beyond reasonable doubt; it reconciles sound administration of justice with the right of the accused to be free from harassment and confinement, unhampered in the preparation of his defence and not subject to punishment prior to conviction."
Again in para 50 on page 830, while dealing with sufficiency of material in an application pertaining to grant of bail where offence charged is one with capital punishment, it is held as follows:
" Under a provision guaranteeing bail except in capital cases where the proof is evident or the presumption great, one accused of a capital crime is entitled to bail unless it clearly appears that the capital offence charged against the accused has been committed and he is the guilty agent. To refuse bail on a hearing to determine an application in a capital case, not only must alt the elements essential to a capital offence appear, but the accused's connection with the offence must also appear. If when the preliminary evidence, together with the evidence adduced at a bail or habeas corpus hearing, shows a capital offence without excuse or justification, bail will be denied, but if such evidence shows probable justification, or lack of participation in the criminal act, bail will be granted.
Where there is only a 'probability' of guilt, or where, on the whole testimony adduced, the court entertains a reasonable doubt as to whether the prisoner committed the act, or whether, in doing so, he was guilty of a capital crime, bail should be granted.
The word 'evident' is constructed to mean manifest, plain, clear, obvious apparent, and notorious, and unless it plainly, clearly, and obviously appears by the proof that the accused is guilt of a capital crime, bail should be allowed."
Thus, malice must be clearly shown or the defendant must be admitted to bail and where there is no evidence of premeditation and deliberation, ill will, or hate, and where evidence concerning the offence that led up to the homicide is conflicting, first degree murder is not indicated and the defendant must be admitted to bail. Regarding 'evident proof in the case EX PARTE THRASH, 167 Tex Crim 409, 320 SW2d 357, it is observed as follows:
"'Evident proof which will prohibit admission to bail means a showing by adequate evidence that the accused, with cool and deliberate mind and formed design, maliciously killed the deceased, and that on a hearing of the facts before the court a dispassionate jury would, upon such evidence, not oniy convict but would assess the death penalty."
Thus, as explained above, it is not proper to assess the evidence to determine the application for bail. Because, dissecting evidence or elaborate documentation may prejudice the case of the parties.
35. Then the question will be what are the factors to be considered. Of course, Section 436 Cr.P.C, speaks about in what cases bail could be taken and Section 437 Speaks about 'when bail may be taken in case of non-bailable offences'.
Section 437 reads thus;
"437. (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but -
(i) such person shall not be so released it there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a congnizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence.
Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for being indentified by witness during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case mey be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accued shall, subject to the provisions of Section 446A and pending such inquiry, be released on bail or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under Sub-section (1), the Court may impose any condition which the Court considers necessary -
(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
(c) otherwise in the interests of justice.
(4) An officer or a Court releasing any person on bail under Sub-section (1) or Sub-section (2), shall record in writing his or its reasons (or special reasons) for so doing.
(5) Any Court which has released a person on bail under Sub-section (1) of Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered."
36. Dealing with the scope of Sections 437 and 439 Cr.P.C., the Supreme Court in Gurcharan Singh and Ors. v. State held that Section 439(1) confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), against granting of bail in the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstance implicating the accused. Even so, the High Court or the Court of Sessions will have to exercise its judicial discertion in considering the question of granting of bail under Section 439(1). Thus, it is clear the High Court or the Court of Sessions will get jurisdiction to consider the application for bail even in case of the offence punishable with death or imprisonment for life provided the Court exercises its judicial discretion.
37. Now it is to be seen that, as mentioned under Section 437 Cr.P.C., what is meant by 'reasonable grounds' and how the discretion has to be exercised while considering the application for bail. In SHEO NATH SINGH v. THE APPELLATE ASSISTANT COMMISSIONER OF INCOME TAX (CENTRAL) CALCUTTA AND ORS., while explaining 'reason to believe' the Supreme Court held to the effect that the words 'reason to believe' suggest that the belief must be that of an honest and reasonable person based upon reasonable grounds and that the Income Tax Officer may act on direct or circumstantial evidence but not on mere suspicion, gossip or rumour. He will be acting without jurisdiction if the reason for his belief that the conditions are satisfied does not exist or is not material or relevant to the belief required by the Section. The Court can always examine this aspect though the declaration or sufficiency of the reasons for the belief cannot be investigated by the Court. Again in DR. JAI SHANKAR (LUNATIC) THROUGH VIJAY SHANKAR BROTHER GUARDIAN v. STATE OF HIMACHAL PRADESH, held that the words 'reason to believe' in Section 464 Cr.P.C. mean a belief which a reasonable person would entertain on facts before him. Thus it is clear that the word 'reasonable' means what is just and fair opinion formed on the material made available.
38. While explaining what is judicial discretion or judicial approach the Supreme Court in GUdikanti Narasimhulu And Others v. Public Prosecutor High Court Of Andhra Pradesh held as follows:
"Some jurists have regarded the term 'judicial discretion' as a misnomer. Nevertheless, the vesting of discretion is the unspoken but inescapable, silent command of our judicial system, and those who exercise it will remember that 'discretion' when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular' (attributed to Lord Mansfield, Tingley V. Dalby, 14 NW 146) 'An appeal to a judge's discretion is an appeal to his judicial conscience. The discretion must be exercised, not in opposition to, but in accordance with, established principles of law.' [Judicial discretion, (ibid) p.33]"
Thus, this Court has to see in a case like the one on hand what are the considerations to be decided while disposing an application filed under Section 439 Cr.P.C. Starting from the Decision in THE STATE v. CAPTAIN JAGJIT SINGH, upto this day, factors to be considered on the point are detailed as follows:
i) nature and seriousness of the offences;
ii) character of the evidence;
iii) circumstances which are peculiar to the accused;
iv) reasonable probabilities of the presence of the accused not being secured at the trial;
v) reasonable apprehension of the witnesses being tampered with;
vi) larger interests of the public or the State and similar other considerations, which arise when a Court is asked to admit accused to bail in a non-bailable offence.
However emphasis is laid on two important points, viz., likelihood of the accused fleeing from justice and tampering with prosecution evidence. In Gurucharan Singh and Ors. v. State the Supreme Court held that it is essential that due and proper weight should be bestowed on these two factors apart from others. Therefore, the basic approach to deal with a case of bail is whether a prima facie case has been made out or not. In Bhagirathsinh Judeja v. State Of Gujarat the Supreme Court held that if there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but 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. Similar view has been expressed by The Supreme Court in The State v. Jaspal Singh Gill Para 9, which reads thus:
"On a consideration of the above three decisions, I am of the view that the Court before granting bail in cases involving non-bailable offences particularly where the trial has not yet commenced should take into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other considerations."
In Gudikanti Narasimhulu's case His Lordship V.R. Krishna Iyer, J. held the factors to be considered thus:
" It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue.
Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being."
His Lordship, while explaining about reasonableness observed that it postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice - to the individual involved and society affected. According to His Lordship, "if public justice is to be promoted, mechanical detention should be demoted". Further, "fleeing justice must be forbidden but punitive harshness should be minimised". Again, "Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal." Further in para 16 of the Judgment, His Lordship observed thus:
"The delicate light of the law favours release unless countered by the negative criteria necessitating that course. The corrective instinct of the law plays upon release orders by strapping on to them protective and curative conditions."
According to His Lordship, "the focus is on personal freedom, barricaded or banned when it turns a menace to the fair administration of justice which is the foundation of a free society".
39. Having understood the scope of Sections 437 and 439, procedure to be followed by the Court while considering an application for bail and the considerations, now this Court has to see whether from the material produced it can be said that the prosecution has made out a prima facie case to connect the petitioner to the offence alleged. Of course, both sides took me through the entire evidence. But, as held earlier, it is not proper to go in detail as it may prejudice the case of the parties or any comment on the material now made available it may place the trial Court in an embarassing position while deciding the case. Considerations which shall weigh for bail, when the case is under investigation, when the investigation is over and charge sheet is filed, when the case ended in conviction, and when bail is sought at the appellate stage are all different. The Court has to see from the material now available whether a prima facie case has been made out and whether it is possible to believe that the petitioner must have committed an offence as alleged. The participation of the accused in the offence must be prima facie convincing in nature. Because it shall be presumed that the person against whom an accusation is made is innocent till the guilt is proved. "Granting of bail shall not be regarded as an acquittal or refusal of bail a conviction". Perusal of material while considering the application for bail is altogether different from perusal of the same material when put to proof at the time of, trial.
40. In the instant case, no doubt, the prosecution has collected voluminous material. But the correctness and veracity of the same can be ascertained only when regular evidence is led in. Some circumstances which give room for doubt at this stage to connect the petitioner to the offence alleged are (i) the offence alleged to have taken place on 7-4-1991 and the investigation ended by filing U.D.R.; (ii) from 7-4-1991 upto 11.30 p.m. of 25-4-1991 nothing is said why the prosecution was silent; (iii) even from 25-4-1991 till 5-6-1991 nothing is said why the prosecution was silent; (iv) it had not recorded the statements of some of the witnesses immediately though the witnesses were readily available; (v) why C.W.2 Uthappa did not mention in the complaint the name of the accused; (vi) why the then police officers were silent if they were sure that the accused had a hand in the offence alleged; (vii) why the police officers did not make a complaint to their superiors like Police Commissioner immediately about the alleged threats by the accused; (viii) the so-called complaint by the Investigating Officer, Ifthikar Mohamed, made against the accused, as a letter alleged to have written by the then Police Commissioner to D.G.P. informing about the bad temperament and to entrust the case to the C.O.D. at that stage is not free from vagueness; (ix) the conduct of the accused at the time of the incident asking the people who were there to bring rope and get into the pool to remove the body was also to be taken into consideration; (x) time and again it is said that as far as possible the investigating agency shall record the statements of the witneses who are supposed to be the eye witnesses at the earlier point of time; (xi) delay and discrepancy in obtaining Doctor's opinion as to the cause of death; (xii) discrepancy in the statement of C.W.2, C.W.4, C.D.5 and C.W.6 about giving blows on the deceased by the accused.
41. Regarding the offence alleged, the case of the petitioner is that it is one of drowning or in the alternative it can be said as one punishable under Section 323 or 304 Part II of I.P.C. Whereas the stand of the prosecution is that it is a clear case punishable under Section 302 IPC. Whether the offence alleged will fall under Section 323 or 304 Part II or it falls under Section 302 IPC is a matter to be decided only after regular evidence is led in when both parties will have an opportunity to establish their stand. However, for the purpose of this application, in view of certain circumstances and absence of not establishing at this stage ill-will between the deceased and the petitioner including other infirmities tentatively observed, it is to be said at this stage that the prosecution has not made out a case to connect the petitioner to the offence alleged, i.e., the one punishable under Section 302 IPC. Even otherwise, if the circumstances explained by the prosecution are accepted as correct, it cannot be said that the petitioner is attempting to flee from justice and to tamper with the prosecution witness if he is released on bail. Because charge-sheet has been filed long ago, case is committed for trial to Sessions Court and it is submitted that the petitioner is now under suspension. Of course, an emphasis is made by the prosecution that the petitioner if released on bail, he being a superior police officer, he may threaten the witnesses by using his office and also make an attempt to tamper with the prosecution evidence. When the petitioner is under suspension, there is no room to entertain such an apprehension.
In this connection, though it is a repetition, it is proper to reproduce here principles laid down by this Court regarding what are the considerations to be weighed and what to be eschewed, as the same make the position clear. In M.P. Ramesh And Others v. State of Karnataka31 this Court held as under:
"It is well settled by the law laid down by the Supreme Court that personal liberty deprived when bail is refused is too precious a value of our constitutional system recognised under Article 21, that the crucial power to negate it is a great trust and confidence to be exercised, not casually or cursorily but judicially, with great care and circumspection in accordance with the established principles of justice displaying a lively and serious concern of the consequences of the refusal of bail to the individual concerned and the community. The significance and sweep of Article 21 of the Constitution make the deprivation of liberty a matter of grave concern. The deprivation of liberty would be permissible only when the law authorising and sanctioning it is reasonable, even-handed and geared to the obtainment and accomplishment of the good of the community.
Deprivation of liberty by refusing to grant bail is not a measure of punishment or for punitive purposes, but for the interests of justice to the individual concerned and to the society affected."
In K. Narayan v. Central Bureau Of investigation, this Court held as under:
"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, 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... . 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 unfettered 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."
The prosecution has made a reference to some of the criminal cases filed against the petitioner. Those cases were filed subsequent to the present case. For example, Cr. No. 94 of 1991 was filed on 28-5-1991 by the Police, Krishnarajapura, Mysore, in respect of an incident alleged to have taken place on 26-2-1991 alleging that the petitioner who was a Karate champion gave a blow to one Manjunath as a result of which he lost one tooth; Cr.No. 175 of 1991 was filed on 16-7-1991 by the Circle Inspector of Police, Mysore, alleging that the petitioner used some defamatory words against the Police Commissioner, Mysore; Cr.No. 134 of 1991 was filed on 8-6-1991 by Subramanyanagar Police, Bangalore, against the petitipner on the ground that certain arms and weapons were seized from the house of the petitioner. But, these cases cannot be said to have any bearing on the present case.
41. The prosecution made all serious efforts to collect material. In respect of the offence alleged to give any finding on such material before explaining and establishing the circumstances which led for the discrepancy and delay at the time of trial, it is not advisable to comment on such material. From the material produced by both sides, which in fact have been extracted above on the request of both sides and not commented upon by this Court, lest it may prejudice their case or put the trial Court in an embarrassing position, the conclusion will be that it is too early to say that the prosecution has made out a prima facie case to connect the Petitioner to the offence punishable under Section 302 IPC. Because of the doubt regarding the delay in lodging the complaint, recording the statements of some of the witnesses twice or thrice and the delay in recording the statements of some witnesses though they were available and the conduct of the petitioner and some other witnesses. In these circumstances and for the reasons stated above, the petitioner is entitled for bail.
42. The case was heard on many dates of hearing according to the convenience of both the learned Counsel and the learned State Public Prosecutor. The Court also did not mind to narrate the facts as disclosed by both sides. The Court now refrains to comment upon the correctness or genuineness of the material so placed except perusing the same to draw an inference whether a prima facie case has been made out and to dispose of the application filed under Section 439 Cr.P.C. It is made clear that the observation if any now made which may touch the merits of the case shall not prejudice both parties to establish their case during the trial and shall not influence the trial Court to hold the trial, appreciate the evidence and give its verdict independently in accordance with law.
43. Regarding the apprehension of the prosecution that the petitioner may tamper with prosecution evidence, the same can be avoided by imposing stringent conditions.
44. For the reasons stated above, this petition is allowed and the petitioner is ordered to be released on bail on the following conditions:
(i) The petitioner is directed to furnish a self bond for a sum of Rss. 50,000/- and 2 sureties for the like sum each to the satisfaction of the trial Court;
(ii) The movement of the petitioner is confined to Bangalore City;
(iii) The petitioner shall furnish the address where he is likely to stay in Bangalore immediately to the jurisdictio'nal Police and also to the Commissioner of Police, Bangalore City;
(iv) The petitioner shall appear before the Commissioner of Police, Bangalore City, twice a day, i.e., between 10-00 am and 11-00 am and between 4-00 pm and 5-00 pm except on the days he has to appear before the Session Court, Mysore, in connection with the case and the Courts in connection with other cases;
(v) The petitioner shall not make any attempt directly or indirectly to tamper with the prosecution evidence;
(vi) The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
44. If the prosecution feels that any one of the conditions now imposed is violated by the petitioner, the prosecution is at liberty to seek for modification or cancellation of the bail.
45. In view of the seriousness involved, the trial Court is directed to conclude the trial and dispose of the case on merit by the end of March, 1992.