Jammu & Kashmir High Court
Des Raj And Three Ors. vs State Of J And K on 7 April, 2005
Equivalent citations: 2005(3)JKJ266
JUDGMENT S.K. Gupta, J.
1. This application has been initiated for the grant of pre-arrest bail to the petitioners apprehending their arrest in a criminal case alleged to have been registered with Police Station Hiranagar in a case under F.I.R. No. 124/2003 entitled 'State v. Des Raj and Ors.' initially registered for an offence under Section 306 R.P.C., in which the petitioners were released on bail but subsequently converted into an offence under Section 302 R.P.C., after the receipt of the Post Mortem Report, pending at the stage of investigation, in which they are still at large.
2. Facts relevant for the disposal of this bail application, exacted from record, depicted in narration are that on the receipt of an information from the Hospital, Hiranagar, that one Roshan Lal S/O Uttam Chand R/O Pathwal Tehsil Hiranagar has been admitted in the Hospital as Poison case, ASI Krishan Chand of Police Station Hiranagar was detailed in the Hospital. The police official in order to record the statement of Roshan Lal made an application to the doctor but the latter reported that the patient is not fit to make a statement. The patient, however, died in the Government Medical College, Jammu. The inquest proceedings were initiated under Section 174 Cr.P.C. by the police, which took possession of the dead body and sent it for post mortem. The investigation revealed that on the night intervening 22nd-23rd of June, 2003, Des Raj S/O Faqiru R/O Patyari, while in his house with the family members caught hold of Roshan Lal in their house and tied him with the Kulla (Pillar) and was given merciless beating. Des Raj, petitioner, called the villagers in his house and in their presence, Roshan Lal apologized and he was released thereafter. This led to the registration of a case under Section 306 R.P.C., against the petitioners and investigation ensued. The post mortem report, however, when received from the doctor, has certified the cause of death being injuries and not poisoning.
3. It may be pointed out that the petitioners were released on bail in the aforesaid F.I.R. for offence under Section 306 R.P.C., however, subject to the conditions that they will cooperate with the prosecution and shall not tamper with the prosecution evidence and in case of violation of any such conditions, the prosecution was left free to move the Court for cancellation of their bail. The record further revealed that the deceased and the daughter of Des Raj were having affairs. The deceased was earlier also caught red handed in the petitioners' house about 4-5 days prior to the occurrence and had been kept in a room wherefrom he managed to escape by breaking the back door of the house. This makes it clear that the deceased was caught second time in the house of Des Raj by his family members and was beaten badly after having been tied with the pillar. It was in the presence of the villagers that the deceased-Roshan Lal stated to have entered into the house with a purpose to commit theft but, however, when repeatedly pressurized to further state with regard to the theft of the articles, he tendered apology. The investigation also revealed that the elders of the village had also seen one injury above the eye of Roshan Lal and was bleeding at that time. The investigation further unfolded that the Beradari also noticed that the deceased after his release from the house of the petitioners was unable to walk properly and clearly gave an impression that he had been beaten badly. The investigation, however, on the basis of material collected including the post mortem report certifying that the poison has not been used by Roshan Lal to commit suicide and offence under Section 302 R.P.C. instead of under Section 306 R.P.C., found to have been committed by the petitioners.
4. Mr. B. L. Kalgotra, learned Counsel appearing for the petitioners, vehemently urged that the petitioners were arrested in an offence under Section 306 R.P.C. and subsequently released on bail. That there was no head injury to the deceased and the complainant party by tampering the post mortem report and in pursuance of a conspiracy have impleaded the petitioners in a murder case in order to cause harassment. That the Police Station, Hiranagar, is out to effect the arrest of the petitioners and in case they succeed, it would jeopardize their reputation in the village. The offence has been converted from 306 R.P.C. to 302 R.P.C. after about three years on the receipt of the Viscera report that the poison is not detected. That the case of the petitioners is one of the rarest case and necessitates the exercise of the discretion by the Court in granting anticipatory bail to the petitioners in invoking the provisions of Section 497A of the Code of Criminal Procedure.
5. In resisting the prayer of the petitioners for grant of pre-arrest bail, the State in their reply submitted that the accused are involved in a heinous non bailable offence and are not entitled to the grant of pre-arrest bail. It is further stated that the earlier application of the petitioners under Section 497-A Cr.P.C. has already been rejected by the Sessions Judge, Kathua, vide order dated 18.10.2004 and there being no change in circumstances, the second application for bail is not maintainable. Further contention of the respondent is that during investigation, an offence under Section 302 R.P.C. has been disclosed against the petitioners, which provides death penalty or life imprisonment. Bail in such cases should not be granted unless the case of the petitioners is squarely covered under the exceptions contained in the proviso to Sub-section (1) of Section 497 Cr.P.C. It is further submitted that after their release on bail under Section 306 R.P.C., the petitioners did not cooperate with the investigation and soon after the petitioners learnt that the offence under Section 302 R.P.C. is found to have been committed, the petitioners have absconded. That the custodial interrogation of the petitioners is otherwise required to elicit vital information leading to the commission of the offence from them and as such they do not deserve to be granted anticipatory bail.
6. I have heard the learned Counsel appearing for the respective parties. Perused the case-diary meticulously and considered the rival contentions of the parties in extenso. The object of the legislature in introducing Section 438 Cr.P.C. is to relieve a person from unnecessary apprehension or disgrace of being jailed for some days before he can apply for bail. The main purpose for enacting the provisions is to provide a remedy to a person who genuinely apprehends that he is likely to be disgraced or humiliated.
7. Considering the historical background to the introduction of Section 438 in the Code and after considering the language used in Sections 437 and 438, it is significant to point out that Section 497-A immediately follows Section 497 which is the main provision for bail in respect of non bailable offences. It further makes it manifest that the conditions imposed by Section 497(1) Cr.P.C. are impliedly contained in Section 497-A Cr.P.C. Otherwise the result would be that person who is accused of murder can get away under Section 497-A Cr.P.C. by obtaining an order for anticipatory bail without the necessity of proving that there were reasonable grounds for believing that he was not guilty of offence punishable with death or imprisonment for life. Such a course would render the provisions of Section 497 Cr.P.C. nugatory and will give a free licence to the accused person charged with non bailable offences to get easy bail by approaching the Court under Section 497-A Cr.P.C. and by-passing Section 497 of the Code. The power under Section 497-A Cr.P.C. of the Court is of an extra ordinary character and can be exercised sparingly in exceptional cases only. The said power is not unguided but all the limitations implied therein preceding Section 497 Cr.P.C. or implied and must be read into Section 497-A Cr.P.C.
8. Mr. Kalgotra, learned Counsel appearing for the petitioners, submitted that the question whether anticipatory bail can be granted in a murder case has been considered by the Apex Court in 'Gurbaksh Singh Sibbia and Anr. v. The State of Punjab' .
9. There is no dispute with regard to the principle laid down in the judgment of the Apex Court in Gurbaksh Singh Sibbia, referred above, but its applicability depends upon the facts and circumstances of each case. Adverting to the factual matrix of this case, it is not in dispute that based on the report of the chemical analysts and the post mortem report giving the cause of death of the deceased, the investigation of the case has proceeded for offence under Section 302 R.P.C. in which the investigating agency has insisted the apprehension of the accused to elicit vital information which is possible through custodial interrogation. It is further borne out from the record that the investigating agency is in the process of collecting further material in proof of the allegation of murder against the accused. While granting or refusing anticipatory bail, what is required to be considered by the Court is the nature of accusation, the gravity of offence alleged against the accused and the material collected during investigation. The Court is not required to look into falsity or truthfulness of the allegations and the material gathered during investigation by the police in the matters of bail.
10. In this case, considering the seriousness of the allegations and the report of the chemical analysts with regard to the viscera sent for analysis to the fact that the presence of poison is ruled out and the post mortem report after autopsy given by the doctor narrating the cause of death, it is not, in my opinion a fit case for the grant of pre-arrest bail to the petitioners.
11. Taking stock of the entire gamut of facts and circumstances discussed above, I am of the considered view that the petitioners do not deserve the grant of anticipatory bail particularly at a stage when the investigation is continuing in a case of murder. Their application is devoid of legal force and bereft of any substance, and is, accordingly, dismissed.
12. The case diaries produced by Mr. Anil Sethi, Addl.AG, shall be returned to him against proper receipt.