Punjab-Haryana High Court
Mukhtiar Kaur Grewal vs The State Of Punjab And Others on 21 January, 2014
Criminal Miscellaneous No. M-30133 of 2013 and
Criminal Miscellaneous No. M-663 of 2014
1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Miscellaneous No. M-30133 of 2013
DATE OF DECISION : January 21, 2014
Mukhtiar Kaur Grewal ...Petitioner
Versus
The State of Punjab and others. ...Respondents
Criminal Miscellaneous No. M-663 of 2014
Jaswant Singh ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR.JUSTICE M.JEYAPAUL
Present : Ms. Jigyasa Tanwar, Advocate for the petitioner
in CRM-M- M-30133 of 2013.
Mr. P.S. Hundal, Assistant Advocate General, Punjab .
Mr. Vikram Chaudhri and Mr. S.P.S. Sidhu, Advocate
respondent no.5 in CRM-M- M-30133 of 2013.
Mr. Vikram Chaudhri and Mr. S.P.S. Sidhu, Advocate
for the petitioner in CRM-M-663 of 2014.
Ms. Jigyasa Tanwar, Advocate
with Ms. Narinder Kaur, Advocate
for the complainant in CRM-M-663 of 2014
***
Singh Parvinder
2014.01.21 16:58
I attest to the accuracy and
integrity of this document
Criminal Miscellaneous No. M-30133 of 2013 and
Criminal Miscellaneous No. M-663 of 2014
2
1. Whether the judgment should be reported in the digest? Yes
M.JEYAPAUL, J.
1. Criminal Miscellaneous No. M-30133 of 2013 is filed by the wife of the deceased praying for directions for further investigation by Central Bureau of Investigation.
2. Criminal Miscellaneous No. M-663 of 2014 is filed by the accused praying for regular bail.
3. FIR No. 92 dated 30.5.2013 was registered at Police station Dehlon, District Ludhiana under Section 302/34 of the Indian Penal Code. The said FIR was recorded at the instance of the first informant Joginder Singh who was Sarpanch of village Mahima Singh Wala against unknown persons for investigation into the murder of Kulwant Singh. The accused Jaswant Singh was the younger brother of deceased Kulwant Singh. Accused is in custody. The deceased Kulwant Singh, his wife Mukhtiar Kaur Grewal and the accused Jaswant Singh are of Indian origin but residents of United Kingdom.
4. I heard the submission made by the learned counsel appearing for the wife of the deceased, the learned counsel appearing for the accused and the learned Assistant Advocate General appearing for the State of Punjab.
5. The following common facts emerged from the records and the arguments advanced before this court:- Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document
Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 3
a) On 13.12.2000, the petitioner Mukhtiar Kaur Grewal filed a petition in United Kingdon for dissolution of marriage admitting therein that she and her husband Kulwant Singh (since deceased) had been separated since the month of August, 1999 and that their marriage was irretrievably broken down, while interalia seeking relief relating to 'property adjustment'. Thereafter, on 13.9.2012 the deceased Kulwant Singh filed a divorce petition in United Kingdom referring to the said petition for dissolution of marriage filed in the year 2000 by Mukhtiar Kaur, notice of which was served upon Mukhtiar Kaur through bailiff on 2.4.2013 as per the certificate of service submitted by the bailiff on 17.4.2013 in United Kingdom. It, therefore, appears that the deceased Kulwant Singh and Mukhtiar Kaur were having strained relationships. The allegation by the accused of differences between the deceased and Mukhtiar Kaur in connection with some 'property adjustment' cannot be ruled out.
However, these facts were neither brought to the notice of the Investigating Officer during the investigation, nor are those mentioned in Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 4 the petition filed by Mukhtiar Kaur.
b) The deceased and the accused were having disputes relating to inherited properties. There were certain cross cases, both civil and criminal between the deceased and the accused. However, efforts were being made by the deceased for amicable settlement of those disputes.
c) On 30.5.2013 F.I.R was registered at the instance of Joginder Singh, Sarpanch of village Mahima Singh Wala against unknown persons for investigation of murder of deceased Kulwant Singh. The accused was associated and was infact present on 30.5.2013 along with the first informant at the time when the death of the deceased came into light.
d) The date of occurrence is in doubt. As per F.I.R, the occurrence had taken place between the period from 20.5.2013 and 30.5.2013. As per the charge framed, it had taken place on 16.5.2013. However, as per the testimonies of at least three hostile witnesses examined in this case during the course of trial, the deceased was alive at least till the evening of 21.5.2013.
Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 5
e) The petitioner Mukhtiar Kaur claims to have come down to India upon learning about the murder of her husband Kulwant Singh. She infact attended the funeral of the deceased on or about 1.6.2013 and thereafter on 3.6.2013 her statement was recorded, which contains allegedly extra judicial confession suffered by the accused before her. She also stated regarding previous litigation between accused and his deceased brother and the suspicion nursed against the accused by her. Statement of Charajit Singh another brother of the deceased was also recorded on 3.6.2013 under Section 161 Cr.P.C. who supported the statement of Mukhtiar Kaur in all respects. On the same day, statements of one Rajinder Kaur and one Gurtej Singh were also recorded, both of whom had allegedly last seen the accused with the deceased on 16.5.2013
f) On 5.6.2013 the accused was arrested. On the same day, alleged statement under Section 161 Cr.P.C. of one Sushil Kumar was recorded, who had allegedly seen the deceased throwing blood stained clothes etc. in the canal. There was alleged Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 6 recovery of keys from the accused on the same day, pertaining to the house from where the dead body was found. Statements dated 5.6.2013 of one Sikander Singh was also recorded under Section 161 Cr.P.C. who alleged that accused had made an extra judicial confession before him. Recovery of blood stained towel from accused is also alleged while he was in custody upon his disclosure statement. The said towel which was taken into possession from the spot was sent to the office of chemical examiner. And as per the report dated 14.6.2013, no human blood on it was detected by the chemical examiner.
g) On 4.7.2013, final report under Section 173 of the Code of Criminal Procedure was filed against the accused. Thereafter, on 29.7.2013 charge was also framed against the accused for trying him for the offence under Section 302 of the Indian Penal Code.
h) A representation dated 4.8.2013 addressed to Director General of Police, Punjab was preferred at this stage by the counsel for the petitioner, interalia Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 7 referring to a newspaper report dated 3.8.2013 alleging threatening calls made to one alleged main witness Sukhwinder Singh Talwandi by the accused, pressurizing him not to submit anything incriminating against him in this case. It was, however, informed by the parties including the counsel for the State and for the petitioner that there is no such witness named Sukhwinder Singh Talwandi cited in the entire case. The letter dated 22.7.2013 was also submitted therewith requesting for apprising the petitioner about the developments of investigations, tracing of call details, scientific investigation of 'hair' found on the hand of the deceased and of the finger and foot prints lifted from the scene of crime. Request for CBI inquiry was also made in the said letter dated 22.7.2013 submitted on 4.8.2013.
i) In the course of trial six star witnesses were examined. All those six witnesses namely PW1 Rajinder Kaur, PW2 Gurtej Singh, PW3 Joginder Singh Sarpanch, PW4 Sushil Kumar, PW5 Charanjit Singh @ Pammi (another brother of the deceased) and PW6 Sikander Singh turned Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 8 wholesale hostile and none supported the prosecution version of circumstantial evidence, last seen theory, recovery of articles etc. PW1, PW3 and PW6 in their deposition in cross examination dated 19.8.2013, 19.8.2013 and 6.9.2013 respectively recorded before the trial court claimed to have seen the deceased alive on 21.5.2013.
j) Repeated summons dated 19.8.2013 and 6.9.2013 were issued to the petitioner to testify before the trial court. However, the petitioner did not appear to give evidence before the trial court. Repeated bailable warrants were also issued against her to secure her presence as a witness. Instead of appearing before the trial court, the petitioner sent E-mail dated 6.9.2013 to her Advocate to file a petition seeking re-investigation by Central Bureau of Investigation.
Consequently, the present petition was filed praying for further investigation by the CBI.
Accused was impleaded as respondent no. 5 in the petition pursuant to his application.
k) The petitioner through her counsel calimed that as per the post mortem report, "human hair" other than Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 9 those of the deceased was found on the dead body and sent for examination. However, FSL report thereof was not part of the charge sheet. It is found that the phrase "other than those of the deceased"
does not appear in any of the documents.
l) FSL report of comparison was obtained on 28.11.2013, after collecting sample hairs of the deceased. The FSL report would disclose that on scientific examination the hairs were found to be human hairs and they showed 'similar' characteristics. On 10.12.2013 supplementary Challan in terms of Section 173 (8) of the Code was also filed placing on record the above FSL report of comparison of hair allegedly found on the body of the deceased with those of the accused.
m) The accused preferred a bail application before the trial court which was dismissed as withdrawn in view of the pendency before this court of the petition filed for directions concerning investigations.
n) An affidavit was filed by Gurpreet Singh Walia, PPS, Assistant Commissioner of Police, (Rural), Ludhiana in the said petition explaining the stand of Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 10 the police.
o) The accused preferred an application Criminal Miscellaneous No. M- 663 of 2014 before this court seeking regular bail invoking the provisions under Section 439 Cr.P.C.
6) Criminal Miscenaleeous No. M-30133 of 2013 The petitioner at the outset relied upon a newspaper cutting of 3.8.2013 to allege that the accused was threatening the main witness Sukhwinder Singh Talwandi. However, on being asked, it was confirmed by the parties including the counsel for the State and for the petitioner that there is no witness named Sukhwinder Singh Talwandi has been cited in the entire case. It was also confirmed that since 5.6.2013 the accused has been in judicial custody. Therefore, I find that there is no substance or merit in the above allegation.
7. Further, the petitioner relies upon a representation dated 4.8.2013 which also contains a letter allegedly dated 22.7.2013 of petitioner Mukhtiar Kaur. The letter dated 22.7.2013 interalia records that she had requested the deceased many a time not to stay alone and to come back to England as she had no support except him for herself and for her disabled child. It is seen that prima facie the above statement is not in tune with the categorical averment in the suit for dissolution of marriage filed by her in the year 2000 and the Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 11 divorce proceedings filed by the deceased in the year 2012 that the husband and wife had separated since 1999.
8. The learned counsel appearing for the accused during the course of arguments had even raised serious doubts regarding the possibility of involvement of the wife of deceased in some conspiracy to eliminate her husband, as they were separated from each other since 1999 and in the year 2000 she had filed a suit for dissolution of marriage, wherein one of the issues raised by her was of 'property adjustment'. He further pointed out that in April, 2013 the deceased had served a notice of divorce upon her and the crime was reported in May, 2013. The learned counsel appearing for the petitioner denied the possibility of any such conspiracy alleged against the petitioner. It is not for this court to look into these issues which can be raised before the investigating agency and the trial court before whom the accused person is free to adduce evidence in his defence.
9. Be that as at may, it is seen that these vital facts were not only suppressed by the petitioner in her statement before the police but also in the petition filed before this court. Moreover, the petition has been filed by the wife of the deceased at a stage where not only investigation was complete and the challan was filed but even trial was virtually at the fake end.
10. The material witnesses had been examined. The Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 12 petitioner Mukhtiar Kaur Grewal herself had been avoiding the process of the trial court. She was repeatedly summoned but she did not appear before the trial court and she virtually forced the trial court to adopt certain coercive methods to secure her presence for adducing her testimony. Contents of order dated 3.12.2012 passed by the learned trial court read as under :-
"Bailable warrants of Mukhtiar Kaur were sent. She has not sent a request that she has been advised rest upto 31.12.2013. Accordingly, she is ordered to be summoned through bailable warrants for 15.01.2014."
11. The E-mail dated 6.9.2013 of Mukhtiar Kaur dispatched to her counsel on the basis of which the present petition was filed reads as follows:-
"That you were the counsel of my husband (Kulwant Singh Grewal) who was murdered at Mahima Singh Wala village. The Punjab Police did not investigate the case properly, so I wish that you should persue this case so that it should be re-investigated by the CBI."
12. It is not disputed that this E-Mail was sent on the date when she was to appear before the trial court in response to the witness summons. However, the fact that she was summoned and that she was not attending court pursuant to the witness summons was not brought to the knowledge of this court. It, therefore, appears Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 13 that the petitioner has not only preferred the petition at a belated stage but has also not disclosed the above vital facts in the petition.
13. Once the charge sheet was filed against the accused and the trial against him has proceeded, no interference in the facts of the case is called for at the instance of the petitioner merely because she was not satisfied or she had levelled some allegations against the police. It is now a matter of record that none of the witnesses who have been examined till date while the accused is still in custody has supported the case of the prosecution. This court cannot exercise its power for issuance of directions relating to the investigation at this belated stage of trial just to help the petitioner Mukhtiar Kaur Grewal to create some case against the accused, more especially when the alleged incriminating circumstances were not supported by the prosecution witnesses in their cross examination.
14. Accused Jaswant Singh is in custody since 5.6.2013 and is awaiting the petitioner Mukhtiar Kaur Grewal to testify in the trial where cross examination of other star witnesses who have turned hostile tends to virtually demolish the entire case of the prosecution. No material could be adduced to rule out that the hair found on the dead body of the deceased was not that of the deceased himself. Pursuant to the directions of this court, the human 'hair' allegedly found on the dead body of the deceased was sent to FSL for Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 14 examination and comparison with the hairs of his accused brother. Even the report so obtained concluding 'similar' characteristics does not further the case of the prosecution in any manner, as 'similar' can never be equated with 'same', it was effectively contended by the learned counsel appearing for the accused.
15. In Collector of Central Excise, Shillong versus Wood Craft Products Ltd., etc. 1995 (3) SCC 454 it has been held by the Hon'ble Supreme Court that the word "similar" is expansive and not restrictive like "same".
16. In State of Gujarat versus Adam Fateh Mohmed Umatiya and others 1971 (3) SCC 208 it was held as under:-
"The second reason given by the expert witness that bulge marks on test cartridges and bulge marks on the empty cartridges were 'similar' but not the 'same' cannot establish that the empty cartridges were fired from the rifle."
17. Reliance placed by the counsel for the accused on these judgments of the Hon'ble Supreme Court appears to be apt and justified.
18. The learned counsel appearing for the petitioner submitted a decision of the Calcutta High Court in Krishna Adhikary alias Barman versus State of West Bengal 2008 Criminal Law Journal 2659 wherein the FSL report submitted in that case reflected Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 15 as follows:-
"Hair collected from the sword marked 'A' and axe marked 'B' and the hair in glass vial marked 'X' were found to be human head origin.
Morphologically each of the three sample hair marked 'A', 'B' and 'X' were found to be similar to each other."
19. The sword according to the report of the Serologist, contained human blood. Both the sword and the axe had attached to it pieces of hair which matched with the quality of the hair of the deceased.
20. In the instant case the experts report does not indicate that the hair recovered from the hands of the dead person squarely matched with the hair of the accused sent for examination. Therefore, I find that the above decision would not apply to the facts of this case.
21. The Hon'ble Supreme Court in Kanbi Karsan Jadav versus State of Gujrat 1966 AIR (SC) 821 has held as follows :-
"The third piece of evidence to be considered is the recovery of the pania, i.e., scarf. No doubt there is no statement by the approver that the scarf in which the dead body was taken was that of the appellant. But a scarf has been found which the High Court has held as belonging to the appellant and hairs both of the deceased Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 16 as well as of the appellant were found on that scarf. It was argued that the finding of the hairs was of no consequence and at least the Chemical Examiner was not the proper expert who could depose as to the similarity or otherwise of the hairs. The writers on medical jurisprudence, however, have stated that from the microscopic examination of the hairs it is possible to say whether they are of the same or of different colours or sizes and from the examination it may help in deciding where the hairs come from".
22. In the above decision, the Hon'ble Supreme Court referring to the opinions of the writers on medical jurisprudence observed that through microscopic examination of the hairs it is possible to see whether the hairs sent for examination are of the same or of different colours or sizes. But in the instant case, only similarity of the hairs of the deceased and the accused were noted down by the expert and not the sameness. Therefore, in my view, the above decision also does not in any way support the contention of the petitioner.
23. There is no eyewitness in the case. The entire case of the prosecution is based on circumstantial evidence. These circumstantial evidence are in the form of oral evidence of certain witnesses, scientific investigation of some materials collected from Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 17 the crime scene and alleged recovery made at the instance of the accused. However, neither the result of the scientific investigation nor the prosecution witnesses have till today totally supported the case of the prosecution in the trial which is at an advanced stage. In such circumstances it would be against the interest of the accused and contrary to the criminal jurisprudence and the settled law in this regard to direct any further investigation.
24. The contentions of the petitioner that report showing inability to lift finger prints from the glass and that the mobile phone data ought to have been placed before the trial court as part of the challan are also erroneous inasmuch as it is for the investigating authority to place on record that material which considers necessary to prove its case against the accused. Moreover, an affidavit has been filed by Gurpreet Singh Walia, PPS, Assistant Commissioner of Police, (Rural), Ludhianna with interalia the following averments.:-
"SI Manjit Kaur finger print expert was also called at the spot who has disclosed after examining the glasses that due to the smudging and spots the fingerprints are not comparable so these cannot be lifted from these glasses. The towel which was taken into possession from the spot was also sent to the office of chemical examiner and no human blood on it was detected by the chemical examiner. The report of the chemical examiner has Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 18 been duly attached with the report U/s 173 Cr.P.C. During the course of investigation the assistance of the Technical Wing Ludhiana was also taken and the record of the call details was obtained and examined and no clue regarding the occurrence was found from these call details and due to this reason these were placed on the police file."
25. Since any report showing inability to lift finger prints from the glasses etc. or showing no clue regarding the occurrence would not have pointed an accusing finger at the accused, there appears no such irregularity in not taking the same as part of the challan, as was being projected by the petitioner. Therefore, no case for taking any action against the police officials for such non inclusion of the same in the challan or for directing further investigation has been made out.
26. In Mithabhai Pashabhai Patel versus State of Gujarat 2009 (6) SCC 332 the Hon'ble Supreme Court was pleased to hold that whereas the directions for "further investigation" in a deserving matter can be passed by the courts in exercise of its constitutional powers under Article 226 and 32 of the Constitution of India, however, directions for "re-investigation" is forbidden in law and no court would ordinarily issue such a direction.
27. Reliance was also placed on Ramachandran versus R. Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 19 Udhaykumar, 2008 (5) SCC 413 wherein the Apex court observed that police can do "further investigation" under Section 173 (8) of the Code and not "fresh investigation" or "re-investigation" to be started ab-initio wiping out earlier investigation altogether.
28. The petitioner Mukhtiar Kaur desired re-investigation of CBI as indicated from her instructions by E-Mail dated 6.9.2013 and, thereafter, her counsel preferred the instant petition seeking directions to permit "further investigation".
29. It is well settled and no more res-integra that though there is ample instance of powers to interfere in the matter of investigation and to direct further investigation, however, exercise of that power is limited to very exceptional cases. Even then, this court shall not impinge upon the domain of the investigating agency to act in a particular manner.
30. The Hon'ble Supreme Court vide judgment dated 17.12.2013 in WP (Criminal) 120 of 2012 "Manohar Lal Sharma versus The Principal Secretary and others." has been pleased to lay down that the courts ordinarily do not interfere in the matters of investigation by police. Similar view has been taken by the Hon'ble Supreme Court in several other pronouncements including "Rubabbuddin Sheikh versus State of Gujarat and others.", 2010 (1) R.C.R. (Criminal) 738 and Sakiri Vasu versus State of U.P. and others 2008 (2) SCC 409, while upholding rejection by High Court of Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 20 the prayer for CBI investigation, it was held by the Hon'ble Supreme Court that investigation by CBI should be directed only in some rare and exceptional cases, otherwise, CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation.
31. The Constitution Bench in State of West Bengal versus Committee for Protection of Democratic Rights 2010 (3) SCC 571 held "Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police."
32. The judgments relied upon by the petitioner do not advance the case of the petitioner for the purpose of directing CBI investigations in view of the judgment of the constitution Bench of the Hon'ble Supreme Court in the above peculiar facts of the case. Moreover, the judgment in the case of Kashmeri Devi's case 1988 Supp. SCC 482 was in relation to a case of death in police custody. In Ram Bihari Yadav's case 1998 (4) SCC 517 as also in Paras Yadav's case 1999 (2) SCC 126 there were corroborated dying declarations. The observations made therein by the Hon'ble Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 21 Supreme Court were based on the special facts and circumstances of those cases. In my considered view, no exceptional circumstances for directing further investigation by CBI or by police authorities are made out in the instant case. Therefore, I find no hesitation to reject the prayer of the petitioner seeking such reliefs.
33. In this petition at the interim stage on the basis of the contentions of the petitioners certain interim orders were passed and on that basis not only further investigation was done but a supplementary challan was also filed before the trial court. Now, it is for the trial court to proceed for further trial in accordance with law.
34. Criminal Miscellaneous No. M-663 of 2014 As regards this bail application under Section 439 of the Code, a primary objection was raised by the prosecution as well as by the counsel for the wife of the deceased that the application for bail filed straightway before this court without seeking dismissal on merits from the court of Sessions is neither maintainable nor shall it be entertained.
35. The learned counsel appearing for the accused, place on record the unreported judgment dated 16.1.2006 of the Hon'ble Supreme Court in IA NO. 7 and 9 in Civil Appeal No. 1778 of 1990 wherein it was held that it was not mandatory that a party must move the Sessions Court before moving the High Court under Section 438 Cr.P.C. and that it was open to the party concerned to make a choice Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 22 and move either to the Sessions Court or the High Court. Moreover, since this court was already monitoring the investigations in the above petition, it was desirable to move before this court straightway for a holistic view of the matter and also in the interest of justice. An application before the court of Sessions seeking bail would have been a mechanical exercise in futility, in view of the pendency of this petition before this court. In this manner, the learned counsel appearing for the accused persuaded me to consider the application for bail on its own merits.
36. Undoubtedly the concurrent jurisdiction is conferred by the code upon High Court and court of Sessions for considering grant or refusal of anticipatory bail or regular bail under Section 438 and 439 of the Code. The position has been clarified by the Hon'ble Supreme Court in the above unreported judgment cited on behalf of the accused. Therefore, finding substantial merit in this contention of the learned counsel for the accused, the bail application was also taken up for holistic consideration in the interest of justice and final disposal along with the above petition filed by the wife of the deceased.
37. It was submitted on behalf of the accused as follows:-
i) The continuation of the petitioners incarceration in jail would certainly defeat the ends of justice. The trial was being delayed by the wife of the deceased Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 23 who despite repeated summons and even issuance of bailable warrants had failed to appear for testifying before the trial court.
ii) An excellent prima facie case was made out on merits for grant of bail in the facts of the instant case, which was foisted upon the innocent accused solely on circumstantial evidence which according to him were thoroughly concocted.
iii) Although there were cross cases bewteen the deceased and the petitioner, they were heading towards the settlement. Since the settlement was imminent there was lack of any motive with the accused for eliminating his real brother.
iv) As per the F.I.R. Itself, the accused was present on 30.5.2013 with the first informant. Had the accused murdered the deceased, he would have made himself scarce. The circumstances alleged against the petitioner were based on conjectures and were not conclusive to fully establish guilt of the accused and to exclude every hypothesis but the one proposed to be proved.
v) The accused shall not be presumed guilty in the absence of clear, cogent, credible or Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 24 unimpeachable evidence merely because of allegation of heinous nature of the crime.
vi) Neither the testimonies of the star witnesses all of them turned hostile nor the scientific evidence further the case of the prosecution.
vii) The accused was 65 years old. He was suffering from various ailments which had a long history and were recently aggravated.
viii) The accused is resident of United Kingdom and is willing to attend the trial. He assured to abide by the terms and conditions imposed for grant of bail.
38. The Hon'ble Supreme Court in Gurcharan Singh versus State (Delhi Administration) 1978 (1) SCC 118 has culled out principles that should govern in granting bail in a non bailable case under Section 439 of the Code, which are nature and seriousness of the offence, the character of 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 tempered with, the larger interest of the public or the State and similar other considerations.
39. Since, the matter pertains to allegation of offence under Section 302 of the Indian Penal Code, deeper scrutiny was required to satisfy whether a prima facie case for grant of bail was made out. Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 25 It is seen that the case against the accused is not based on any eye witness account, but on circumstantial evidence. At this stage of trial none of the main witnesses so far examined by the prosecution has supported the case of the prosecution, despite the accused being in custody for a quite long time. There is no cogent material to suggest any threat given to these witnesses who turned hostile.
40. It is effectively submitted by the learned counsel appearing for the accused that even the scientific report regarding comparison of "hair" in the present case is inconclusive to reach any specific conclusion against the accused, in the background of the decisions cited above to support his contention. Further, the scientific report regarding the towel recovered as per the disclsure statement is in the negative and since no "blood stains" were found, the same do not advance the case of the prosecution.
41. It is undisputed that settlement was proposed by the deceased regarding his disputes with his brother accused. The learned counsel appearing for the accused would also effectively contend that the chain of alleged circumstantial evidence, therefore, cannot be said to be complete and reliable so as to arrive at a prima facie conclusion of the guilt of the accused. At any rate, in my considered view, elaborate discussion on merits of the evidence at this stage may prejudice the case before the trial court and hence the same is avoided, however, suffice it to say that a prima facie Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 26 case has been made out by the accused for grant of bail. The case being based only on circumstantial evidence, for the trial of the case, the critical test laid down in paragraphs 6 and 8 of the judgment in the celebrated case in Ashish Batham versus State of M.P. 2002 (7) SCC 317 would be applicable.
42. The Constitution Bench regarding grant or refusal of regular bail under Section 439 Cr.P.C observed in Gurbax Singh Sibbia versus State of Punjab 1980 (2) SCC 565 as follows:-
"27..........the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment.......there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 439 and that the only principle which was established was that the discretion should be exercised judiciously.........the principle to be deduced from the various Sections in the Criminal Procedure Code was that grant of bail is a rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 27 himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.
28........coming nearer home, it was observation by Krishana Iyyer, J in Gudikanti Narasimhulu versus Public Prosecutor, High Court of Andhra Pradesh ........the issue of bail is one of liberty, justice, public safety and the burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process.......... After all personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human life."
43. There is no cogent material to suggest any threat to witnesses from the accused if he is released on bail. The accused is of 65 years of age and is a resident of United Kingdom. He is suffering from various ailments and he also requires medical attention. There is no material nor any reason to presume that the accused will not be available for facing the trial which is already at an advanced stage.
Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document Criminal Miscellaneous No. M-30133 of 2013 and Criminal Miscellaneous No. M-663 of 2014 28
44. Therefore, I find that there is merit in the submissions of the learned counsel for the accused for grant of bail. The accused is directed to be released on bail to the satisfaction of the trial court. However, it is necessary to impose a condition that the accused shall give at least 24 hours prior intimation in writing to the Investigating Officer of the date of his travel with flight details, as and when he proposes to travel abroad. The accused shall attend the trial proceedings as and when required by the trial court. The accused shall not temper with any witness. In the event of any default, the prosecution is at liberty to apply for cancellation of bail.
45. In the result, Criminal Miscellaneous No. M-30133 of 2013 is dismissed and Criminal Miscellaneous No. M-663 of 2014 is allowed.
(M. JEYAPAUL) JUDGE January 21, 2014 p.singh Singh Parvinder 2014.01.21 16:58 I attest to the accuracy and integrity of this document