Bombay High Court
Ram Prasad Sharma vs State Of Maharashtra And Ors. on 7 January, 1988
Equivalent citations: 1988(4)BOMCR188
JUDGMENT A.A. Desai, J.
1. These applications under section 401 read with section 397 and further read with section 482 of the Code of Criminal Procedure are directed against the order passed by the learned Additional Sessions Judge releasing the non-applicants on bail. The facts as apparent on the record make explicitly clear that for want of requisite measures of proper care and caution by the Presiding Officer facilitated the accused to abuse the process of law.
2. The non-applicants in these applications are sons of one Ramjilal Sharma who is brother of applicant Ram Prasad. There had been a dispute since last twenty years between these two brothers regarding certain properties. On 28th March, 1987 at Kamptee, District Nagpur at 10.30 A.M. in broad day light in a busy locality like market place, one Chiku Sharma, son of the applicant Ram Prasad was assaulted with knife and he sustained 16 injuries. The non-applicants came to be arrested immediately for the offence punishable under section 302 read with section 34 of the Indian Penal Code.
3. The non-applicants on 3rd April, 1987 applied under section 439 of the Code of Criminal Procedure for grant of bail. They in their application alleged that deceased Chiku at the spot of incident tried to assault two of the non-applicants with knife and they sustained injuries on right palm. The further alleged that they tried to save themselves from the blows of the deceased and reached to the police station to report the matter. However, they were arrested.
4. Shri Mahajan, the learned Additional Sessions Judge, heard the parties and perused the case diary. The learned Sessions Judge has recorded that the accused with a previous plan encircled the deceased and put chilly powder in his eyes and struck him with knives. Some of the witnesses have recognised the assailants and referred them in their statements as sons of Ramjilal Sharma. Even the non-applicants accused have admitted their presence at the sport. The defence of the accused persons that deceased Chiku assaulted them does not appear to be convincing. The instruments of crime were recovered on memorandum of the accused persons. It was noted that, according to the Police, the death of deceased Chiku Sharma has created a tense situation in the town. The prosecution also expresses an apprehension that the accused persons will pressurise and tamper with the witnesses if released on bail and furthermore, danger to their lives is probable. Shri Mahajan, the learned Sessions Judge with these observations rejected the application by an order dated 13th April, 1987.
5. The non-applicants accused after rejection did not approach to this Court for grant of bail. However, they again on 18th April, 1987 vide Application No. 687 of 1987 approached to the Sessions Judge, Nagpur for grant of bail. They have stated that identification parade held, on 8th April, 1987 was merely a farce. They further alleged that police were forcing them to give statements according to their say. The investigation is complete. The only thing they have added in the second application was that the accused No. 1 Satyanarayan is suffering from Tuberculosis, and the accused No. 3 Murlidhar is suffering from heart disease.
6. The learned Sessions Judge has observed that there is a strong prima facie case against the non-applicants accused for having committed culpable homicide amounting to murder. It is also observed that no new ground has been made out except that the illness of accused Nos. 1 and 3. However, these allegations are not at all supported by any documentary evidence. The learned Sessions Judge, therefore, by an order dated 6th May, 1987 rejected the application. This order was also not questioned before this Court. The prosecution completed the investigation and filed the Charge Sheet on 8th May, 1987.
7. The non applicants accused thereafter for the third time on 1st July, 1987 vide Application No. 1209 of 1987 applied for grant of bail. In this application they stated that from the documents and the statements filed alongwith the Charge-Sheet, it does not appear that the non-applicants accused persons are guilty for the offence punishable, either with death or imprisonment for life. The identification parade was held after 11 days from the arrest of the accused and during that period the witnesses had the occasion to see them. The witnesses have referred them merely as sons of Ramjilal Maharaj.
8. Shri Rohi, the learned Additional Sessions Judge heard the parties and also perused the entire record. It is observed by the learned Sessions Judge that there has been a oral dying declaration of deceased Chiku wherein he has disclosed that he was assaulted by sons of Ramjilal. The incident occurred in a broad day light and there are eye witnesses. The learned Sessions Judge also made a mention that the statement of all the material witnesses have been recorded immediately on the same day of incident. The accused were identified in the identification parade. Besides this there is a discovery of blood stained cloth from each of the accused. According to the learned Sessions Judge, there is a likelihood of the situation taking serious turn if the accused are released on bail. The learned Sessions Judge has, therefore, by his order dated 16th July, 1987 rejected the application.
9. After three successive rejection of the applications for grant of bail and lapse of about five months, the accused Manikchand and Murlidhar on 29th August, 1987 presented the fourth application. It was registered as Miscellaneous Criminal Application No. 1601 of 1987. In this application these accused alleged that they have exercised the right of private defence and they could be charged at the most under section 304 Part-II. Besides this, other allegations in the application were similar to that in the earlier applications. However, in this application the accused have not calculatedly disclosed regarding the results of earlier applications. This application was placed before Shri Dayalsingh K. Pawar, the learned Additional Sessions Judge. He on 2nd September, 1987 called for the record. The prosecution on 14th September, 1987 filed a report Exh. 3 of the Police Inspector, Police State, Kamptee. It is specifically disclosed that the accused persons are of criminal tendencies, and they will create trouble for the witnesses if released on bail. He further stated that these persons if necessary shall indulge in further assault and murder. He apprehended that the other side is likely to take revenge.
10. Shri Dayalsingh K. Pawar, the learned Additional Sessions Judge observed that the application is opposed by the State. The learned Sessions Judge has further observed that I have gone through the record. He however, recorded that prima facie it appears that the accused are not directly concerned with offence under section 302 of the Indian Penal Code. Shri Dayalsingh K. Pawar, the Additional Sessions Judge, by his order dated 17th September, 1987 released the accused Manikchand and Murlidhar on bail.
11. The accused Satyanarayan and Santosh then on 13th October, 1987 presented application for bail vide Miscellaneous Criminal Application No. 1947 of 1987. This application was also listed before Shri Dayalsingh K. Pawar, the learned Additional Sessions Judge, Nagpur. The learned Judge has observed that other two accused have been released on bail. From the FIR there is no direct evidence. From the diary and statement it appears that the case is based on circumstantial evidence. No prima facie case is made out under section 302 of the Indian Penal Code. Shri Dayalsingh K. Pawar, the learned Judge, therefore, by his order dated 16th October, 1987 released the accused Satyanarayan and Santosh on bail.
12. The non-applicants accused in their fourth application have not disclosed, as observed, regarding the presentation of earlier applications and the orders passed thereon. The fourth application came to be filed after a lapse of five and seven months. Even the learned Judge by way of a precaution has not made any enquiry. The reasoning which persuaded Shri Dayalsingh K. Pawar, for grant of bail does not appear to be an outcome of a Judicial scrutiny of the record. His observations that there is no prima facie case against the accused connecting them with the offence punishable under section 302 of the Indian Penal Code, do not appear to be an outcome of a Judicial application of mind.
13. The applicant Ramprasad the father of the deceased in these proceedings have questioned the correctness and propriety of the impugned orders passed by the learned Additional Sessions Judge. According to the applicant, the non applicants accused have misrepresented before the trial Court and they have deliberately suppressed the relevant aspect of rejection of their earlier applications. The applicant contended that the conduct of the accused speaks volume about the mala fide intentions. It was submitted that there is a voluminous evidence against the accused persons implicating them in the offence of murder punishable under section 302 of the Indian Penal Code, for which a penalty of death or transportation of life has been prescribed. On the face of such voluminous evidence, according to the applicant, by no stretch of imagination a judicial authority could reasonably fairly and with a judicial sense of responsibility record a reasoning that there is no prima facie case or the evidence against them is merely circumstantial or they are not directly connected with the offence punishable under section 302 of the Indian Penal Code. The submission made as such carries substantial force. The affairs as is apparent are not only disturbing but also alarming.
14. I heard Shri Daga, the learned Counsel appearing in both these applications for the non-applicants accused. Mr. Daga rightly and fairly admitted that there is a prima facie case against the non-applicants accused implicating them for the offence punishable under section 302 of the Indian Penal Code. However, Mr. Daga made a submission that there is no report of the police authorities against the non-applicants accused abusing their liberty subsequent to their release on bail. Mr. Daga relying on the decision in case of Bhagirathsingh Judeja v. State of Gujarat, made a submission that for cancellation of bail very cogent and overwhelming circumstances are necessary. Such circumstances according to Mr. Daga are not available and as such the applicant is not entitled to seek the cancellation of bail. The submission as made by Mr. Daga is not in conformity with the merit of the matter. The non-applicants-accused, considering the material borne on record and as discussed above, were not entitled to be released on bail. However, they have procured the order of grant of bail by suppressing the relevant facts. They were benefited for want of exercise of due caution and precaution on the part of the Judicial Officer. As such, the non-applicants are not entitled to continue or enjoy the privilege flowing from such order of grant of bail.
15. Mr. Daga further made a submission that the rule of procedure as prevailing in the Sessions Court does not cast any obligation on the accused persons to disclose in their application regarding the particulars of earlier applications and their results. As such, according to Mr. Daga, the accused-applicants have not committed any illegality or tried to mislead the Court by not disclosing these relevant facts. As a matter of judicial discipline and judicial propriety, when the accused invoke the judicial discretion of the Court in the matter of grant of bail, it was not only obligatory but was also imperative for the accused to place before the Court all the facts which are relevant and have the bearing on exercise of judicial discretion. The matter cannot merely said to be procedural or requirement of compliance of any rule but also concerned with the responsibility and duty of the accused and also the Counsel representing such accused. It was obligatory on the part of the Counsel to be fair with the Court by disclosing all that is material and relevant. In this regard it is not expedient to withhold certain facts which in the estimate may create embargo in securing the favourable result. Keeping back of such facts which ultimately may prove to be adverse to the party claiming relief amounts not only misdirecting but also fraud on the process of law as practised in the instant case. The Supreme Court in case of Shahzad Hasan Khan v. Ishtiaq Hasan Khan and another, has severely criticised the aspect of approaching different Bench of the High Court in such a matter of grant of bail.
16. The accused since procured a relief by suppressing necessary details have rendered themselves dis-entitled to continue to enjoy such privilege and benefit. The relief as obtained, does not flow from exercise of judicial discretion. The order of release is liable to be cancelled.
17. It is really unfortunate and painful Shri Dayalsingh K. Pawar, the Additional Sessions Judge though on record neither referred nor took into account the report of the Police Inspector (Exh. 3). The non-applicants were involved in a heinous crime. It has been committed in a most pre-planned manner. Shri Pawar, the learned Judge taking into consideration the seriousness of the matter involved ought not to have been so generous in releasing the non-applicants on bail. The entire approach of Shri Pawar and particularly the reasoning he has picked up for the grant of bail is not consistent with the material on record. They appear to be quite strange. The conduct in overlooking this voluminous material and adopting such reasoning demonstrates utter disregard towards the judicial discipline as well judicial responsibility. The learned Sessions Judge should not have so liberal as in the instant case for grant of bail. Judicial wisdom further cast a duty to make necessary enquiry if the relevant fact are not disclosed by the party or Counsel. Neglecting such duties results in complete miscarriage of justice and which a judge who is engaged in dispensing justice cannot afford.
18. I heard Shri Sirpurkar, the learned Counsel for applicant, Shri M.R. Daga, the learned Counsel appearing for non-applicants-accused and Shri R.G. Agarwal, the learned Counsel for the State. According to them, the rule and procedure as prevailing in the Sessions Court do not prescribe any duty for the accused in the matter of bail to make a statement regarding their earlier applications. If this is cannot, it invites the attention of the authorities to prescribe for rules and procedure where the applicants would be under obligation to disclose the relevant facts including the fact of the earlier proceedings. Else, the abuse of the process of law by keeping back the facts would become the regular feature in the Court of Sessions.
19. In the result, the applications are allowed. The impugned orders dated 17th September, 1987 and 16th October, 1987 are set aside. The non-applicants are directed to surrender to their bail bond forthwith.