N.C. Dwivedi, J.
1. Misc. Criminal Case No. 921 of 1978 (Pyarelal Pandey v. The State of M. P.), Misc. Criminal Case No. 628 Of 1978 (Sukhdev Sharma v. State of M. P.) and Misc. Criminal Case No. 480 of 197K (Mahendra Pratap Pandey v. State of M. P.) arise out of the incidents at Kirandol and have been consolidated. The order in Misc. Criminal Case No. 921 of 1978 (Pyarelal Pandey v. State of M. P.) shall govern the disposal of these three cases.
2. The applicant Pyarelal Pandey is employed in NMDC as a mechanic-cum-operator and (is) a member of the Executive of Samyukta Khadan Mazdur Sangh. In Misc. Cri. Case No. 480 of 1978. the applicant Mahendra Pratap Pandey is employed as Office Assistant in the Office of the Executive Engineer (Civil) at Kirandol and also an Organising Secretary of Samyukta Khadan Mazdur Sangh, Bailadila Iron Ore Project, Kirandol. Samyukta Khadan Mazdur Sangh is affiliated to All India Trade Union Congress.
3. In Misc. Cri. Case No. 628 of 1978, the five applicants, Sukhdev Sharma, Mahesh Prasad Tiwari, Vijayan Barsadularam and Maheshwar Shashman, are employees of the NMDC Bailadilla and they are active workers of the union.
4. The application of Pyarelal Pandey is under Section 438/439 of the Cr. P. C., that of Mahendra Pratap Pandey is under Section 438 of the Cr. P. C. and that of the five applicants is under Section 439 of the Cr. P. C.
5. In Misc. Criminal Case No. 480 of 1978, an ad interim anticipatory bail was granted to the applicant Mahendra Pratap Pandey vide order dated 12-5-1978. The State of Madhya Pradesh has filed an application (LA. No. 1016 of 1978) for cancellation of the interim anticipatory bail.
6. All the applicants are involved in offences under Sections 302, 307, 353, 120B of the I.P.C. and other offences. The incidents took place in the month of April. 1978. It is alleged that the applicants, who are office-bearers and active workers amongst labourers, incited them and prevented the Police Force by force from maintenance of law and order. In these incidents, a police official by name Komalsingh was murdered.
7. According to the applicants, they were personally agitating the cause of retrenched labourers and they and other labourers were victims of Police torture, terrorism and firing in which number of persons from the labourers' side were injured and about 43 of the Police Force Personnel were also injured and one of them was dead.
8. Shri S. C. Datt, Advocate for the applicants, contended that in case the applicants Pyarelal Pandey and Mahendra Pratap Pandey are arrested, they will be prevented from defending themselves as also from putting forth the stand of the labourers before the Commission of Enquiry. Further, they are not likely to abscond.
9. On behalf of the State, it was alleged that these applicants are involved in serious offences. The applicants Pyarelal Pandey and Mahendra Pratap Pandey, besides other persons, are absconding.
10. In Misc. Cri. Case No. 480 of 1978, in support of the application for cancellation of bail (I. A. No. 1016 of 1978), affidavits of N. K. Singh, Superintendent of Police, Jagdalpur, I. D. Naik, Sub-Inspector (C.I.D.), Jagdalpur, H. D. Sharma, Inspector (C.I.D.), Bhopal and D- D. Singh, p.S.P. (C.I.D.), Bhopal have been filed in support of the seriousness of the incidents at Kirandol,
11. To controvert these facts, the applicant Mahendra Pratap Pandey has filed an affidavit stating that after the grant of anticipatory bail, he had appeared before the Judicial Magistrate First Class, Jagdalpur, who released him on bail.
12. I have considered the submissions of Shri S. C. Datt, Advocate for the applicants and Shri M.V. Tamaskar. Government Advocate, for the State, I am of the view that there is no case for grant of anticipatory bail to the applicants Pyarelal Pandey and Mahendra Pratap Pandey and also no case for grant of bail to the arrested applicants.
13. Before I discuss the case on merits, it will be essential to state the law,
14. In Balchand Jain v. State of Madhya Pradesh AIR 1977 SC 366, it is held as under:
It is clear that the intention of the Legislature in enshrining the salutary provision in Section 438 of the Code which applies only to non-bailable offences was to see that the liberty of the subject is not put to jeopardy on frivolous grounds at the instance of unscrupulous or irresponsible persons or officers who may sometimes be in charge of prosecution-
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that Section 438 of the Code is an extraordinary remedy and should be resorted to only in special cases.(Para 25 p. 379)
15. In State of Rajasthan, Jaipur v. Balchand : 1978CriLJ195 , it is observed as under:
The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with the Court when considering the question of jail. So also the heinousness of the crime.
16. In Chhajju Ram Godara v. State of Haryana 1978 Cri LJ 608 (Punj), it is held as under:
It is manifest that the conditions imposed by Section 437(1) are implicitly contained in Section 438 of the Code. Otherwise the result would be that a person who is accused of murder can get away under Section 438 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 provisions of Section 437 nugatory and will give a free licence to the accused persons charged with non-bailable offences to get easy bail by approaching the Court under Section 438 and bypassing Section 437 of the Code. This, we feel, could never have been the intention of the Legislature. Section 438 does not contain unguided or uncanalised powers to pass an order for anticipatory bail, but such an order being of an exceptional type can only be passed if, apart from the conditions mentioned in Section 437, there is a special case made out for passing the order.
17. In Suresh Vasudeva v. State 1978 Cri LJ 677 (Delhi), it is held as under:
The next question which arises is whether it is a fit case for the exercise of power under Section 438. It is true that this power has to be exercised sparingly. One of the categories of cases for grant of anticipatory bail, as pointed out by the Supreme Court in the concurring judgment of Bhagwati, J. as well as in the main judgment of Fazal Ali, J., is that there should be reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail. In the present case in which the application has been filed, the offence alleged is in view of the recovery effected from the petitioner of foreign exchange as stated in the memo of recovery filed along with the petition. The foreign currency is not worth more than eleven or twelve hundred rupees. The present case is not concerned with any other offence which the petitioner may have committed under the Act. The petitioner has already been released on bail in a more serious case under the Corruption Act. It was not even argued on behalf of the State that the petitioner is likely to abscond or otherwise misuse his liberty while on bail.
18. In State v. Sanjay Gandhi 1978 Cri LJ 952 (SC), it is held as under:
The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extraordinary nature is meant to be exercised in appropriate cases, when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the courts to be silent spectators to the subversion of the judicial process.
19. Keeping in view the above law, I will scrutinize the matter placed before me.
20. The first information report was ' lodged by Shri N. D. Singh, Circle Inspector of Police. A perusal of this report shows that an agitation of the workers started from March 10, 1978 over retrenchment of some workers by contractors. The agitation was led by Indrajitsingh, a member of the Communist Party between March 10, 1978 to March 29, 1978. There was hunger strike. From March 30, 1978 to April 4, 1978, there were violent agitations at the office of the General Manager, On April 1, 1978, unpleasant situation was avoided because of tear gas, but the union leaders and their associates continued the agitation, On April 4, 1978, women under the leadership of Smt. Basant Rani, wife of Indrajitsingh held agitation and there was Gherao of the bungalow of the General Manager day and night. Because of these agitations, crime Nos. 110 to 112 of 1978 were registered on April 1, 1978, crime Nos. 113 and 114 of 1978 were registered on April 3, 1978 and crime No. 118 of 1978 was registered on April 5, 1978-Smt. Basant Rani was arrested under Section 151 of the Cr. P. C. which enraged Indrajitsingh who collected number of labourers and incited them by inflammatory speeches. Indrajitsingh incited the labourers to flow rivers of blood.
21. Because of these, D.E.F. and S.A.F. with Mahesh, Sub-Divisional Magistrate and others with tear gas squad reached the labour camp and enquired about Indrajitsingh when labourers and labour leaders collected armed with nailed lathis and iron rods and attacked Police force with them. Indrajitsingh incited labourers to attack Police force with the result that labourers indulged in heavy pelting of stones and attacked Police force with lathis and rods.
22. The applicants before me are named in the first information report, In these incidents, Komalsingh was done to death and number of police personnel were injured. A number of huts were set on fire, Prima facie case diary disclosed very serious incidents involving law and order situation and the applicants are specifically named in the first information report for being responsible for the serious incidents. A perusal of the case diary disclosed that a number of persons have been arrested. It also contains the names of 24 persons who are absconding. In this list, Mahendra Pratap Pandey and Pyarelal Pandey are mentioned as absconders. The case diary contains statements of a number of persons who have stated about the various incidents in which the applicants prominently figured.
23. The affidavits filed in Misc. Cri. Case No. 480 of 1978 by responsible officers disclosed a very serious situation. As against these affidavits, the applicant Mahendra Pratap Pandey has only stated in his affidavit that he was appearing before the Judicial Magistrate First Class, Jagdalpur but he has not stated that the incidents disclosed by the affidavits were either false or did not at all take place.
24. The affidavit of N. K. Singh, Superintendent of Police, Jagdalpur as also the other affidavits disclosed, that labour unrest was created by the union leaders. The entire incidents continued for a number of days and the incidents did not subside in spite of tear gassing, The deceased Komalsingh had sustained fracture of the skull and died in consequence thereof. A number of huts were set on fire and the police officers were not only chased but were also attacked. This affidavit and other affidavits disclosed prima facie offences of criminal trespass, attempted murder and murder. The affidavit further disclosed that there was an apprehension of the likelihood of the applicant's tampering with the evidence. There is nothing on record to controvert the contents of this affidavit.
25. Shri S. C. Datt seriously contended that these cases revealed that the police did not produce the case diary on certain hearing which disclosed that they were attempting to create false evidence and were manipulating matters. In the affidavits filed in Misc. Cri. Case No. 480 of 1978, the reasons for not producing the case diary before the High Court have been mentioned and there is no material to controvert these statements. Further, in Misc. Cri. Case No. 628 of 1978, there is an order-sheet, dated 5-5-1978 recorded by Addl. Sessions Judge, Jagdalpur which disclosed that the case diary was bulky and in three parts running into more than 100 pages. The order-sheet dated 19-5-1978, disclosed that the case diary was produced and was perused by the Addl. Sessions Judge. The certified copies of the order-sheets dated 5-5-1978 and 19-5-1978, therefore, disclosed that the case diary was produced before the Addl. Sessions Judge on those dates. In view of the production of the case diary before the Addl. Sessions Judge, I find no substance in the contention that the case diary was purposely suppressed. The affidavits of the four police officers give satisfactory explanation for non-production of the case diary before this Court and I find no material to suspect deliberate suppression of the case diary.
26. The case diary disclosed very serious crimes of various types. The applicants are named in the first information report. There is also likelihood of tampering of evidence. The affidavit of D. D. Singh further shows that Indrajitsingh, one of the prominent leaders had absconded from the spot and was arrested on wireless messages at Waltair (Andhra Pradesh). Number of culprits connected-with these incidents are absconding as per case diary. There is prima facie material to indicate that explosive law and order situation was created by the acts and inflammatory speeches of the leaders and other union workers. In these circumstances, I am definitely of the view that in view of the seriousness of the crimes, there is no. case either for grant of bail or for confirmation of the anticipatory bail granted to the applicant Mahendra Pratap Pandey.
27. For the reasons given above, all the three applications for grant of bail, Misc. Criminal Case No. 921 of 1978 (Pyarelal Pandey v. State of M. P.) Misc. Criminal Case No. 628 of 1978 (Sukhdev Sharma v. State of M.P.) and Misc. Criminal Case No. 480 of 1978 (Mahendra Pratap Pandey v. State of M.P.), are rejected. An ad interim anticipatory bail granted to the applicant Mahendra Pratap Pandey in Misc. Cri. Case No. 480 of 1978 is cancelled.