M.M. Punchhi, J.
1. This is an application for bail by six police officers. The Additional Judge, Special Court, Ludhiana, refused bail to them giving rise to this petition.
2. It appears that the petitioners purporting to investigate a case of theft went to Kesarganj Mandi in Ludhiana town, taking with them two suspects of the theft, so as to point out where and to whom they had sold the stolen wheat. In that process, they took hold of Ram Parkash, a Commission Agent, and came across Jagat Ram Thapar, another Commission Agent. Ram Parkash, Commission Agent, was allegedly given fist and kick blows and was even hand-cuffed. Ram Parkash allegedly died while still in handcuffs. On commotion, some people from the market got collected there. The police then fired 2 shots, one of which caused an injury on the forehead of Jagat Ram Thapar. Then unlocking the handcuffs of Ram Parkash, the police party is said to have gone away on its jeep. Jagat Ram Thapar then reported commissipn of crime under Section 304/307/148/149, Penal Code, and Section 25/27, Arms Act, at Police Station Kotwali Ludhiana on Dec. 6, 1984. The Police of Kotwali Police Station was able to establish the identity of the petitioners as the accused of the suggested crime.
3. The accused-petitioners were arrested on Dec. 13, 1984. They were remanded to police custody from time to time. On Dec. 31, 1984, they were produced before a Magistrate at Ludhiana. Instead of the accused-petitioners pleading for their case for bail, the investigation pleaded for bail to them on the ground that prima facie offence under Section 352, Penal Code, alone appeased to have been committed/The learned Magistrate readily granted bail to the petitioners. Jagat Ram Thapar, the first informant, being aggrieved against the said order approached this Court in Criminal Misc. No. 70-M of 1985, Reported in (1985) 1 Rec Cri Rule 327 seeking cancellation of bail.
4. When the petition for cancellation of bail was put up before me, I ordered the State of Punjab to be made a party, requiring the production of the investigation file. The State of Punjab rather supported the case of the accused petitioners by asserting that Ram Parkash deceased had possibly collapsed at the spot, for he had a diseased heart and further that the injury found on the forehead of Jagat Ram Thapar, first informant, was not conclusively established to have been caused by a fire-arm. Vide my order dt. Jan. 31, 1985, I cancelled the bail of the accused-petitioners taking the view that the offences disclosed in the first information report were triable by a Special Court established under the Terrorist Affected Areas (Special Courts) Act,' 1984 (for short, the Act) and whether scheduled offences had been committed or not had first to be opined by a Special Court. I had further taken the view that the Special Court alone had the jurisdiction to see whether the first information report prima facie disclosed commission of scheduled offences and further whether investigation had been able to collect any evidence to suggest oneway or the other. I had also commented on the conduct of the learned Magistrate in having usurped the function of the Special Court as it then appeared to me the reason for such step was not far to seek, because the accused-petitioners were themselves policemen and had sympathisers in the investigating agency. However, I left it open to the Special Court to consider the question of bail of the accused-petitioners after they had surrendered to custody.
5. The petitioners on Feb. 11, 1985, surrendered before the Additional Judge, Special Court, and simultaneously prayed for bail. The prayer was declined. Thereafter the investigation moved an application on February 15, 1985, claiming that no offence stood committed under Section 304/307/148/149, Penal Code. and under Section 25/27 of the Arms Act, and therefore, the case against the petitioners be dropped. Further it was pleaded that only offence under Section 352, Penal Code, had been made out and that being a non-cognizable one the Special Court should not take cognizance thereof. Shri R.L. Ananii, Additional Judge, Special Court, carefully analysing the facts and circumstances emergent on the record, vide order dt. Feb. 20, 1985, copy whereof has been appended to this petition, rejected the prayer of the investigation and took cognizance of the offences under SS. 302/149 and 307/149, Penal Code, and Section 27 of the Arms Act. Another attempt by the petitioners to have themselves released on bail was also repelled by the learned Judge vide order dt. Feb. 20, 1985.
6. It is in the background of these developments that the prayer of bail of the petitioners is to be considered. Added thereto is the stance of the State in not opposing the prayer. Rather it is asserted that when the Public Prosecutor does not oppose the prayer for bail, the accused must get bail more or less as a matter of right. As is plain, the learned Additional Judge has taken cognizance of scheduled offences, which prima facie disclose to have been committed on the police report submitted to him under Section 173, Cr. P.C. It is a different matter that the quality of that report is drenched with the colour of Section 169, Cr. P.C, and the learned Additional Judge has taken it to be a colour composite of Section 170, Cr. P.C. That order is not open to challenge before this Court as is the mandate of the Act. Even the power of bail conferred on this Court has plenty of angularities. Sub-secs. (5) and (6) of Section 15 of the Act spell out the parameters. They are in these terms:
(5). Notwithstanding anything contained in the Code, no person accused of a scheduled offence shall, if in custody, be released on bail or on his own bond unless -
(a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(6). The limitations on granting of bail specified in Sub-section (5) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail.
At this stage, I must dispose of the support of the Public Prosecutor that when he has not opposed the application, the accused-petitioners must get bail, more or less as a matter of right. The argument, if accepted, would lead to the converse result that whenever the Public Prosecutor opposes the application for bail the accused persons must be denied bail. In other words, if the interpretation of the Public Prosecutor is accepted, this Court would be pledging its discretion to the will of the Public Prosecutor. That cannot be done in any event: that was not the intention of the Legislature. Whether the Public Prosecutor opposes or does not oppose an application, the Court has yet to satisfy that there are reasonable grounds for believing that the applicant is not guilty of a scheduled offence and that he is not likely to commit any offence while on bail. Further (since this being a case from Punjab) the Court further has to satisfy itself (as is the mandate of Sub-section (6)) that the tests laid down under Section 439-A, Cr. P.C. are satisfied. The tests are that the Court must be satisfied that there are reasonable grounds for believing that the applicant is not guilty of any offence specified in cl. (a) of Section 439-A (Ss. 302, 304 and 307 or part thereof) and further record reasons in writing about its satisfaction that there are exceptional and sufficient grounds to release the accused on bail. Though one of the conditions, namely, about reasonable grounds for believing that the applicant is not guilty of such offence, is common to Section 15 of the Act and Section 439-A, Cr P.C. yet three tests afore-enumerated have to be satisfied. Applying those tests, I cannot for the present, coin out reasonable grounds for believing that the petitioners are not guilty of the offences which have been taken cognizance of by the Additional Judge, Special Court, I cannot supply reasons in writing in satisfaction that there are exceptional and sufficient grounds to release the petitioners on bail. And lastly I cannot record satisfaction that if the petitioners are released on bail, they are not likely to commit any offence while on bail. The mere fact that the petitioners are police officers or that the offence has been committed while in the purported discharge of their duties or that the investigation in the case was handled by superior officers in the police hierarchy, do not and cannot weigh with me in view of the special provisions regarding bail enacted under the Act.
7. For the foregoing reasons, I find no ground to release the petitioners on bail. This application is accordingly dismissed.