Orissa High Court
Md. Muzafar Hossain Khan vs State Of Orissa on 7 December, 1989
Equivalent citations: 1990CRILJ1024
JUDGMENT S.C. Mohapatra, J.
1. Apprehending arrest on an accusation of having committed an offence under Section 307, I.P.C., petitioner has filed this application for anticipatory bail under Section 438, Cr.P.C.
2. Petitioner is a member of the political party which is popularly known as 'Congress-I'. For two terms he has been elected as a member of the State Legislative Assembly from one of the Assembly Constituencies of Bolangir District and is now a Minister of State in the Ministry formed by the leader of Congress-I Legislative Party. During the election to the 9th Loksabha for which in Parliamentary Constituency of Bolangir polling was held on 22-11-1989 from 7 am. to 4 p.m. near about 1 p.m., petitioner reached (Durgapali village at a distance of 16 kilometres from Bolangir Town, the district Headquarters in a car accompanied by his official gunman armed with a pistol and ammunitions. Some of his party followers also moved with him in another vehicle, a jeep. After petitioner arrived, there was some disturbance for which there was firing from pistol injuring some persons. There are two versions of the incident as revealed from the information lodged by the gunman at Sadar Police Station at 3 p.m. and Sadananda Patel at 9 p.m. while the gunman reported that he had to open fire to give protection to the Minister from the unruly mob consisting of about 150 persons, Sadananda reported that ; petitioner opened fire attacking the persons present to give vote in the polling station as a result of which some persons were injured. Information of Sadananda accusing the petitioner of having committed an offence under Section 307, I.P.C., attempting to commit murder is the cause of the petitioner believing that he may be arrested.
3. Petitioner filed the application for anticipatory bail in this Court on 2-12-1989 and on a motion being made before Honourable Acting Chief Justice, the matter was moved before me when hearing learned counsel for the petitioner in presence of the learned Additional Standing Counsel, I directed the matter to be placed for hearing on 5-12-1989 when Additional Standing Counsel would collect records and place for consideration. I directed that the petitioner shall not be arrested till 6-12-1989 which date was extended till today. On 5-12-1989, learned Government Advocate appeared with learned Additional Standing Counsel and informed that he is in possession of all papers. Many Advocates appeared for interveners. I have heard learned counsel for the petitioner, interveners and learned Government Advocate on 5-12-1989, 6-12-1989 and today before delivery of this order.
4. While petitioner relies upon the two First Information Reports and publication in newspapers in support of his reason to believe that he may be arrested, interveners relied upon some publications in newspapers to submit that the circumstances are such that I should not think it fit for granting anticipatory bail to the petitioner. Learned Government Advocate produced the case diaries in respect of investigation of the two informations and a sealed packet containing a report to the Election Commission on independent enquiry in respect of the incident.
5. Mr. B. M. Patnaik, learned Senior Advocate for the petitioner submitted that the report if any in the sealed packet ought not to be looked into since the same is not a part of investigation and in case, I decide to peruse the same, he should get a chance to peruse it to effectively reply to the same. Since there is ho assertion before me that the Election Commission has taken a decision either accepting or rejecting the enquiry report, I decided not to open the sealed packet and returned the same to the learned Government Advocate in the same condition for onward transmission to the custodian of the document from whom the same has been received by him. Accordingly, there is no necessity to examine the objection of Mr. B. M. Patnaik.
6. All the interveners have no personal knowledge. Their informations having been obtained either from newspapers or from others I am not inclined to give any weight to their statements. Accordingly, I need not deal with their submissions which would be only of academic interest based on hypothetical versions and are not material for consideration of this application.
7. Undoubtedly, petitioner was present at the time of incident. Even his own official gunman has stated so. According to him, petitioner had come to the Polling Station in a fleet of two vehicles accompanied by his gunmen as well as followers. He stated that he fired bullets for protection of the petitioner and Sadananda stated in his information and statement that petitioner fired the bullets from a pistol injuring some persons. Case diary reveals that in the incident in the noon between 1 p.m. and 1.30 p.m. two other persons have died sustaining lacerated and incised injuries but not bullet injuries. Persons injured by bullets stated before the Police while under treatment in hospital though three days after the incident, that they were injured on account of bullets being fired by the petitioner. Any observation by me as to the person who might have fired the bullets from a pistol is likely to prejudice the accused since I shall have to deal with circumstances leading to firing as revealed in both the informations. This much is certain that the atmosphere at the polling station was tense.
8. Mr. B. M. Patnaik submitted that party rivalry and tense situation should be kept in mind and the subsequent election of the candidate of Janata Dal Party, the rival party of the petitioner not only from Bolangir Constituency but also in most of the Constituencies of this State and in the Republic should also be a circumstance to consider for granting anticipatory bail. There being no assertion at any time till date that the petitioner is likely to abscond or to interfere with investigation, the same are factors in support of grant of anticipatory bail.
9. Section 438, Cr.P.C. is a new provision under the Code of Criminal Procedure to give protection to liberty of persons. Object of such a provision has been considered in AIR 1980 SC 1632: (1980 Cri LJ 1125), Gurbaksh Singh Sibbia v. State of Punjab and Sarbajit Singh v. State of Punjab where it has been held that the consideration for grant of bail under Section 437, Cr.P.C. to a person arrested would not be squarely made applicable for grant of anticipatory bail. It has been held that Legislature has wisely conferred wide discretion on the Courts and devising formula confining the power to grant anticipatory bail within a strait-jacket and a cast iron rule would not be wholesome. Thus, it has been held that the Judges have to decide cases as they come before them mindful of the need to keep passion and prejudice out of their decision. In which case to grant bail and in which case to refuse it is in the very nature of things, a matter of their discretion. This decision was considered by the Supreme Court in AIR 1985 SC 969: (1985 Cri LJ 1175), Pokar Ram v. State of Rajasthan where it was clarified that status in life, affluence or otherwise are hardly relevant factors while examining the request for granting anticipatory bail. Supreme Court took note that anticipatory bail to some extent, intrudes in the sphere of investigation of crime and the Court must be cautious and circumspect in exercising such power of a discretionary nature. While con- , sidering whether it would cancel the anticipatory bail already granted, Supreme Court observed:
"...If such an order is allowed to stand, faith of public in administration of justice is likely to be considerably shaken...."
Same faith is a relevant factor for considering to grant or refuse anticipatory bail. Caution laid down by both the decisions of the Supreme Court are based on the general principle that wider the power greater should be the restraint.
10. Under the Code of Criminal Procedure arrest is a procedure for investigation as provided in Section 157. An offender is not to be arrested as a matter of course. The Investigating Officer on receipt of information is to proceed to the spot to investigate the facts and circumstances of the case and if necessary, to take measures for arrest of the offender. Exhaustive provision has been made so that a person arrested gets full protection of the Court and is not left to the whims and caprices of the investigating agency. As has been observed by the Supreme Court in the decision reported in AIR 1980 SC 1632: (1980 Cri LJ 1125) (SC) (supra) the investigating machinery may be put to motion for humiliating persons and by arrest, hand-cuff, parading in the street or detention for a day or two may make the humiliation intended complete. Therefore, Court while granting anticipatory bail is to strike a balance so that individuals may be protected from unnecessary humiliation and faith of the public in administration of justice is not likely to be considerably shaken. Since reasonable belief of being arrested is the cause giving rise to an application for anticipatory bail and arrest is to be made by the investigating agency, Sections 157 and 438 are to be read together. Therefore, it is always to be considered whether the process of the investigating agency to find it necessary to take measures for arrest of the offender is free from any extraneous consideration or is a normal feature in course of investigation.
11. In the present case, although the occurrrence is on 22-11-1989 and petitioner is available to be arrested, investigating agency has not thought it necessary to arrest him till 2nd December, 1989 when petition for anticipatory bail was filed. Although many inter-veners have appeared, they have not brought out cogent circumstances to convince me that the investigating agency did not arrest the petitioner because he is a Minister in the Executive administration of the Congress-I party in power in the State. Equally, there is no convincing circumstance that formation of Ministry by the Janata Dal, the rival party in the Centre would influence the investigating agency in the State despite the party in power to arrest the petitioner. Accordingly, although the petitioner has reason to believe that he may be arrested on accusation of a non-bailable offence which may be justified, no circumstance has been brought to my notice at this stage to come to the conclusion that the investigating agency has found it necessary to take measures for arrest of the petitioner on considerations extraneous to the materials on record. As has been observed by the Supreme Court, I need not consider the limitations under Section 437, Cr.P.C. to find out whether there is a prima facie case nature of the offence being heinous or that the petitioner is likely to abscond or interfere with the investigation.
12. Added to my findings that there is no material for coming to the conclusion that the investigating agency for extraneous consideration may find it necessary to arrest the petitioner, I may observe that the incident giving rise to accusation made against the petitioner, was at a time when the electors were exercising their right of franchise in a polling station. Democracy in our Republic depends upon election which is a regular feature. Electors must have a confidence that they would secretely express their opinion by ballot independent of any external influence freely in a peaceful situation without fear. In case, they do not have such faith in the peaceful conduct of the election they would not exercise their right of franchise freely and fearlessly which would shake the foundation of our Democracy. If any offence is alleged to have been committed, there should be no interference in the investigation by grant of anticipatory bail unless clear materials of external influence are there since the same would shake confidence of the people in administration of justice. Petitioner is a representative of the people, elected in two consecutive terms. While not considering whether he ought to have gone to the polling booth, I can only comment that to go to the electors, a representative of the people should not proceed with a gunman, followers specially when the polling was taking place. Being a man holding a high office being representative of the people, he should appreciate the sentiment of the people. Candidates had their polling agents in each polling station. They were competent enough to bring to the notice of the authorities of any irregularity in polling. Elaborate arrangements are normally made for avoiding untoward events for free and smooth election. In case, petitioner felt that there might not be smooth polling on account of action of rival party, he could have brought the same to the notice of the Officers in-charge of the Polling and ought not to have gone with contingent and armed persons to the Polling Station. This observation of mine should not be given any importance by the investigating agency since I have no intention to interfere with the investigation. I am expressing this while examining how there is likelihood of confidence of the people being shaken, in case, investigation is interfered with if anticipatory bail is granted.
In view of the aforesaid discussions, I am satisfied that this is not a fit case where the discretion of granting anticipatory bail to the petitioner should be exercised.
13. In the result, application of the petitioner is dismissed.