Tek Chand, J.
1. This is an application under Section 498, Criminal Procedure Code, for release of the petitioners on bail pending their trial for offence said to have committed under Sections 302. 376, 109 and 201, Indian Penal Code. The applicants are (1) Rao Harnarain Singh, an Advocate and an Additional Public Prosecutor at Gurgaon, (2) Ch. Mauji Ram Deputy Superintendent Jail, Gurgaon, (3) Balbir Singh and (4) Sanwat Singh. The salient facts of the case are that Kalu Ram accused, husband of Mst. Surti, used to live in one of the rooms in the house of accused Rao Harnarain Singh.
Mst. Surti is said to be an attractive girl of 19 years. On the evening of 18th of April 1957 Rao Harnarain Singh was entertaining Ch. Mauji Ram, Deputy Superintendent Jail, Gurgaon, on the eve of his transfer. Rao Harnarain Singh is said to have required Kalu Hum to send Mst. Surti for the carnal pleasures of himself and his guests. Kalu Ram, who had a very humble station in life, after initial protasts, was induced to provide his wife to satisfy the carnal lust of Rao Harnarain Singh and his guests.
It is said that the girl protested vehemently against this outrageous demand, but under pressure of her husband, she was induced to surrender her chastity. It is alleged that three accused persons Rao Harnarain Singb, Ch. Mauji Ram and Balbir Singh ravished her during the night & she died almost immediately. It is also alleged that her shrieks were heard by some Advocates living in the neighbourhood. It is then stated that at the instance of Rao Harnarain Singh, Dr. Ram Parshad, Assistant Surgeon, was sent for in order to ascertain whether the girl had merely swooned or died.
Another physician Dr. Gulati, was also summoned and both of thorn were of the view, that she was dead but they could not assign the cause of her death. In the early hours of the morning of 19th April 1957 she was cremated. The prosecution contention is that the cremation was unduly hurried, without the performance of the usual funeral rites and with a view to destroy proof of violence done to her. The prosecution then alleges that soon after the hurried cremation of the dead body of Mst. Surti Rao Harnarain Singh left Gurgaon on 19th of April 1957 and was not to be seen there for several days.
Ch. Mauji Ram also left Gurgaon in the early hours of the morning of 19th of April 1957. It is also alleged that before her cremation, clothes worn by Mst. Surti at the time had been removed and they have been found by an expert to be smeared with stains of seminal fluid and human blood. Kalu Ram, the husband of Mst. Surti, made a confession giving full details as to the manner in which pressure was put on him for production of his wife for the satisfaction of the carnal pleasures of Rao Harnarain Singh and his guests.
This confession had been retracted after a lapse of a month and a half of its recording. The prosecution contends that Kalu Ram was made to resile from the confession under influence and coercion emanating from accused Rao Harnarain Singh and Mauji Ram, The prosecution also submitted that Babu Ram, who served Rao Harnarain Singh and his guests at the dinner, was a witness to the earlier part of the entertainment and saw Rao Harnarain Singh, Mauji Ram and Balbir Singh going inside a room with the girl and he also heard their talk when they came out after she had expired.
Out of the applicants Balbir Singh was proclaimed as an absconder and was apprehended after his property had been attached under the provisions of Criminal Procedure Code. Bail Application was rejected by the Committing Magistrate and the Additional Sessions Judge also declined to release the accused on bail. This Court has therefore been moved under Section 498, Criminal Procedure Code, praying that the petitioners be released on bail pending the decision of the case.
2. On behalf of the accused it is stated that a report was made by the local station house Officer to the Superintendent of Police of Gurgaon on 26th of April, 1957 that no tfrime had been committed. It is then stated that about three weeks after the cremation of the girl a rumour went round in Gurgaon that Mst. Surti had died an unnatural death and this rumour was featured by a local newspaper. A formal report was then lodged by the Superintendent of Police on 11th of May, 1957.
In that report he stated that on 26th of April. 1957 station House Officer Sadar Gurgaon brought to his notice an incident wherein a woman was reported to have died on the night of 18th/19th of April 1957 and that her body was cremated in haste early in the morning without performance of customary obsequial rites. The report then stated that although no formal or informal complaint or report had been lodged with the police and since the matter was likely to attract public attention he ordered Shri Ram Partap Deputy Superintendent of Police to Institute immediate inquiries into the Incident.
The report then mentioned that while the matter was still under inquiry with the DeputySuperintendent of Police, the Superintendent of Police found a large number of different rumours in circulation as to the sinister and suspicious manner in which the girl met her death. The Superintendent of Police ordered that a case under Section 302, Indian Penal Code, should be registered and investigated by the Inspector of Police, C. I. A, Gurgaon, under his direct supervision, and that the inquiry entrusted to Shri Ram Partap, Deputy Superintendent of Police, should be discontinued forthwith and all the papers transferred to his file. On 13th of May 1957 the Deputy Superintendent of Police, C. I. D. started investigation. On 18th of May, 1957 Rao Harnarain Singh was taken into custody and Mauji Ram was arrested on 28th of May, 1957. Balbir Singh accused was arrested on 26th of June, 1957. In this case 30th of July 1957 was the date fixed for recording the evidence of prosecution witnesses and on that day a transfer application was moved on behalf of the accused in this Court which has not yet been disposed of except that the High Court declined to stay proceedings in the trial Court. I am informed that 12th of August 1957 is the next date of hearing in this case before the trial Court.
3. Mr. Bhagat Singh Chawla has pressed for enlargement of the accused on bail on several grounds. He said that his clients deserved to be released on bail, as there did not appear any reasonable ground for holding that they had been gulity of an offence punishable with death or with imprisonment for life.
In the absence of Corpus delict he said it was not possible on the allegations in this case to hold any one of the accused to be guilty of murder, especially when there is no eye-witness to testify to the murder and no proof being available that the body of the girl which was cremated in the early hours shortly after the occurrence bore any marks of violence, suggestive of commission of offences of which they have been accused.
4. He also contended that on the allegations made in this case commission of offence of rape on the girl could not be established. According to him the girl was produced for the satisfaction of the carnal desires of Rao Harnarain Singh and his guests, with the consent of the girl's husband Kalu Ram. He further urged that the girl was also a consenting party and she surrendered her body to the three persons willingly and with the approval and at the bidding of her husband.
5. Mr. Bhagat Singh, also suggested that she was a grown up girl of 19 years, and a married woman, and death could not result in consequence of sexual intercourse with her by three persons. Her death, he thought, was fortuitous and probably due to sudden failure of the heart. In his words, Rao Harnarain Singh and his guests were having 'a good time' and had gathered there for a little bit of 'gaiety and enjoyment'.
He also said that his two clients were 'respectable persons', one being an Advocate and the other a Deputy Superintendent of Jail, andfor this reason also deserved to be set at large. He lastly urged that the gathering of three accused in the evening and their act in ravishing Mst. Surti, young wife of Kalu Ram, might be morally reprehensible but it was not such an act which should stand in the way of the accused, from being released on bail.
6. From such material as was referred to during the course of arguments of the counsel, I cannot accept the suggestion of S. Bhagat Singh Chawla that Kalu Ram, the husband of the girl, was a pander who had willingly agreed to minister to the baser passions of his clients. I cannot even pursuade myself to the view that his wife was a dissolute young woman who willingly lent her body to her ravishers to gratify her own lustful propensities;
The confession of Kalu Ram which was read out and which was later retracted after a month and a half, does not suggest consent on the part of either Kalu Ram or Mst Surti his wife. Kalu Ram appears to have protested as vehemently as he could dare, having regard to his humble station in life, to the suggestion made by accused Rao Harnarain Singh, that he should send his wife for carnal connection with himself and with his guests.
After such verbal resistance as Kalu Ram could offer had been overcome, his wife indignantly refused to submit to the indecent proposal conveyed to her through her husband. It is said that under the husband's pressure, she after vehement protestations resigned herself to the disgrace that awaited her. There is also material with the prosecution that her shrieks pierced through the walls of the room and were heard by some Advocates living in the neighbourhood just before her voice was finally and fatally silenced. Such a submission on her part cannot be called by any stretch of language, consent.
7. A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be 'consent' as understood in law. Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.
Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.
A woman is said to consent, only when she freely agrees to submit herself, while in freeand unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. On the material placed before me it cannot reasonably be argued that Mst. Surti was an assenting victim to the outrage perpetrated on her, on the fatal night. It is also not possible for me to accept the contention of the counsel for the accused petitioners, that Kalu Rani, the husband of the girl had freely and voluntarily accepted the importunate overtures, said to have been made to him, by Rao Haranarain Singh with full awareness of and willing concurrence in the proposed acts to which his wife was to be subjected by the accused persons.
8. Mr. Bhagat Singh Chawla also submitted commiseratingly that his clients were respectable and well connected persons, belonging to a higher strata of society and had assembled to spend a pleasant evening with no intention to endanger the life of the girl. The orgy of lust and debauchery to which the accused are said to have abandoned themselves was an act of unmitigated reprobates rather than of the so called 'respectable persons'.
9. I am not unmindful of the proposition that the bad character of a man does not disentitle him from being bailed out if the law allows it. It is also well established that the object of detention pending criminal proceedings, is not punishment, and the law favours allowance of bail, which is the rule, and refusal is the exception. On the other hand, the social position or status of an accused person should not be taken into consideration while granting or rejecting an application for bail.
The Courts do not grant bail merely because an accused is a respectable man and is able to afford reasonable security (vide Emperor v. Abhairaj Kunwar AIR 1940 Oudh 8 (A) and Shaikh Karim v. Emperor AIR 1926 Nag 279 (B). I may profitably quote the observations of Courtney-Terrell, C. J., in Hikayat Singh v. Emperor, AIR 1932 Pat 209, at p. 211 (C).
'We must point out in the most emphatic way for the future guidance of Magistrates and Sessions Judges that save in exceptional cases, persons accused of crimes punishable with long terms of imprisonment should not be released by them on bail. The richer the accused and the more easy it is for him to find bail, the less it is desirable that he should be released .....'
10. It will be proper at this place to consider the principles which should guide the Courts in granting bail in a case like the present. There cannot be inflexible rules governing a subject which rests principally with the Courts' discretion in the matter of allowance or refusal of bail. The probability or improbability of the prosecution terminating in conviction is not a conclusive consideration for the grant or refusal of bail, particularly in a case like this, in which evidence has not so far been led. For their guidance the Courts also look to othercircumstances which may be determinative, as for example the Courts consider:
(a) the enormity of the charge,
(b) the nature of the accusation,
(c) the severity of the punishment which the conviction will entail, (d) the nature of the evidence in support of the accusation,
(e) the danger of the applicant's absconding if he is released on bail,
(f) the danger of witnesses being tampered with,
(g) the protracted nature of the trial, (h) opportunity to the applicant for preparation of his defence and access to hiscounsel and
(i) the health, age and sex of the accused. There are also other considerations and the above is by no means an exhaustive catalogue of the factors which should weigh with the Courts.
11. The applicants in this case are accused of having committed the offences of murder, rape and also for causing disappearance of evidence of these offences. The first is a capital offence entailing death sentence, the second involves imprisonment for life and the last makes the offence punishable with imprisonment which may extend to seven years.
Section 497(1) of the Code of Criminal Procedure, while conferring wide discretionary powers on Courts to grant or refuse bail, where an accused person is suspected of the commission of a non-bailable offence, imposes important limitations, in cases where there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. The words 'death or imprisonment for life,' should be read disjunctively, so as to mean offence punishable with death or punishable with imprisonment for life vide Emperor v. Nga San Htwa, AIR 1927 Rang 205 (FB) (D).
12. In this case an application for bail has been made at the initial stages of the case before the framing of charges against the accused and it is not possible at this juncture to scan the evidence in order to sec whether it establishes the guilt of the accused beyond reasonable doubt. On an application for bail it is not the certainty or the improbability of a capital sentence or imprisonment for life being imposed, which is to be seen but simply whether, the offence is one for which such a sentence may be awarded.
In considering an application for bail a Court is not required to conduct a preliminary trial of the case and consider the probability of the accused being found guilty or innocent. The Courts while deciding such applications, will be traversing beyond their proper ambit and would be exceeding: the limits of their function if they engage themselves in discovering the guilt or innocence of the accused applicant, which can only be determined at the trial stage.
Courts may, however, incidentally turn to the evidence with a view to examining the question of allowance or refusal of bail with reference to the principles governing release or detention pending the proceedings vide Public Prosecutor v. M. Sanyasayya Naidu AIR 1925 Mad 1224 (E).
13. The applicants in this case have been accused of having committed grave offences punishable with long terms of imprisonment and this is a consideration against their being released on bail. The question of severity of punishment must be looked at not from the point of view of what sentence on the facts of a particular case the Court should award, but only to see the maximum punishment which the Court may award.
14. Shri Chctan Das Diwan, learned counsel appearing for the State, has argued that the State entertains grave apprehension that there is a danger of the applicants absconding. It is stated in the affidavit of S. Surjan Singh, Deputy Superintendent of Police, C.I.D., that Balbir Singh accused was proclaimed as an absconder and he could not be apprehended until his property was attached under the provisions of the Criminal Procedure Code.
He has also argued that two accused, Rao Harnarain Singh and Mauji Ram, are men of importance in their respective walks of life, possessing considerable wealth and wielding great influence, and the witnesses who are to be produced by the prosecution, comparatively, occupy a very humble station in life; one of such witnesses served meals to the party at the dinner and another was a sweepress in the house of Rao Harnarain Singh. In this case, the apprehension that the accused on being released on bail will in all likelihood avail themselves of the opportunities to corrupt the prosecution witnesses by tampering with their testimony cannot be dismissed as chimerical.
15. In this case there is no risk of any unreasonable delay in consequence of the laches of the prosecution. An unreasonably long detention in Jail before the commencement of the trial is ordinarily a hardship, which weighs greatly with the Courts, in favour of the accused, while considering the desirability of allowing bail applications. But in this case there is no such risk as 12th of August, 1957, is the next date fixed before the trial Court. It is expected that the trial will proceed with reasonable speed.
16. There is no suggestion, that the trial is going to be protracted or their detention in jail has in any way deprived them of an opportunity to prepare their defence or has in any way interfered with their right to instruct their counsel. Lastly, bail in this case has not been asked on grounds relating to health or age of the accused.
17. After having thoroughly examined the arguments of the learned counsel, and after taking into careful consideration the principles governing release on bail, I am of the view, thatthis application and Criminal Miscellaneous No. 397 of 1957 cannot succeed, and are, there-tore, dismissed. I must however, warn the trial Court against drawing any inferences as to the guilt or innocence of the accused from any observations made in this order. The guilt or innocence of the accused is a matter which has to be determined by the trial Court and no remarks made by me should be treated as prejudging the case. Such comments as have been made in this order exclusively bear on considerations for refusing or allowing release on bail.