Yogeshwar Dayal, J.
(1) These are two applications filed onbehalf of the State under section 439(2) of the Code of Criminal Procedure
(2) CR. M.(M) 456 of 1977 has been filed for cancellation of the order of bail dated 1/08/1977 passed by Sessions Judge, Delhi,granting bail to P. S. Bhinder, Deputy Inspector General of Police.Gurcharan Singh. Superintendent of Police, Amarject Singh, Inspecarof Police and Parsu Ram. constable.
(3) CR. M(M) 474 of 1974 has also been filed by the State forcancellation of bail granted, by different orders dated 11th August,1977, passed by the learned Sessions Judge, to Raj Kumar Sharma,S.D.P.O. Shahdara Division, Delhi, Rohtas Singh, Inspector, formerlyS.H.O. Police Station, Farash Bazar, East District Delhi, Harkesh, Inspector of Police, Sukhdev Singh, formerly S.D.P.O. Gandhi Nagar,East District, Dehii, Sita Ram Vohra, Sub-Inspector of Police, Rajeshwar Pershad Gautam, Sub-Inspector, Rajinder Singh, Sub-Inspectorand Dharampal Singh, Sub-Inspector.
(4) The facts of the case are that on 6/04/1977, the CentralGovernment desired that an inquiry be made into the circumstancesrelating to the death of Sunder Singh alias Sunder which took place atDelhi on the night intervening 24/ 25/11/1976 while hewas in police custody.
(5) During the preliminary inquiry about 53 witnesses were examined. As a result of the inquiry, Ramendra Singh, Superintendent ofPolice (C.B.I.) Special Police Establishment got first information report registered on 10/06/1977. In the heading of the F.I.R.against the column 'name and address of the accused', it was statedthat .. . . .Some Delhi Police Personnel'. The offences mentionedwere under sections 120B Indian Penal Code read with Section 302 Indian Penal Code , 302, 193 and 218 Indian Penal Code . It was further stated in the F.I.R. as under :
'ENQUIRIES made so far have revealed that the ostensible purpose for which Sunder Singh @ Sunder was taken out ofHawalat as Ps, Shahdara on 24-11-76 did not actuallyexist and further that his death occurred in thecustody of the police party who accompanied him on thesaid night on 24/25-11-76. It is also revealed that SunderSingh @ Sunder's death took place in circumstances whichled to the conclusion that he was murdered by the members of the police party. Before agreeing to the commission of the said offence and participating in it some ofthe police officers had also fabricated evidence and prepared false records against the deceased or had causedthe same to be done. A regular case is, thereforee, registered now and the investigation is entrusted to Shri AbnashChander Dsp Cbi Spe CIU(A) New Delhi'.
(6) After the registration of the F.I.R., the investigations wereconducted by Shri Abnash Chander. Dsp, C.B.I. (SPE) under thesupervision of the Superintendent of Police of the same Branch.
(7) On 9-8-1977, the Special Police Establishment (C.B.I.) filed incourt a charge-sheet dated 8/08/1977. This charge-sheet wasfiled against 13 accused. The list of accused persons attached to thecharge-sheet is as under :
1. Shri Gurcharan Singh, Ips, formerly Supdt. of Police, EastDistrict, Delhi.2. Shri Raj Kumar Sharma (R. K. Sharma) Sdpo Shahdara,East District, Delhi.3. Shri Rohtas Singh, Inspector, S.H.O., P.S. Farash Bazar,East Distt., Delhi.4. Shri Harkesh, Reserve Inspector, Police Lines, Seelampur,East District, Delhi.5. Shri Amarjit Singh, Inspector, S.H.O. police station, Shahdara, East Distt., Delhi.6. Shri Parsu Ram, constable, P.S. Farash Bazar, East Distt.,Delhi.7. Shri Sukhdev Singh, S.D.P.O. Gandhi Nagar, East Distt..Delhi.8. Shri Sita Ram. Vohra, S.I. P.S. Shahdara, Delhi-9. Shri Rajeshwar Prasad Gautam, S.I.. Special Staff, EastDistt., Delhi.10. Shri Rajinder Singh, S.I. in charge Police Post, KrishnaNagar, East District, Delhi.11. Shri Dharam Pal Singh, S.I. of Police, Special Staff, EastDistrict, Delhi.12. Shri Pritam Singh Bhinder, Ips, formerly D.I.G. (Range),Delhi.13. Shri R. C. Kaushik, S. 1. of Police, P.S. Farash Bazar,East District, Delhi.andunknown persons.
(8) It will be noticed that out of the aforesaid accused, learnedSessions Judge had, by the impunged order dated 1/08/1977,accepted the bail applications of accused Gurcharan Singh, Superintendent of Police (A-1), P.S. Bhinder, Deputy Inspector General (Range)(A-12), Parsu Ram, Constable (A-6) and Amarjit Singh, Inspector(A-5) even before the filing of the charge-sheet.
(9) At the time of the filing of the charge-sheet, these four accusedwere already on bail. Accused R.C. Kaushik, S.I. (A-l 3) was cvading arrest till then. The rest of the accused were produced in custodyand were directed to be released on bail by the learned Sessions Judge by different orders dated 11-8-1977.
(10) The charge-sheet, after reciting the facts and the circumstancesof the case, and the oral and documentary evidence gathered duringinvestigation, mentions that sometimes in September, 1976, the accusedand the other unknown persons had entered into a planned criminalconspiracy to murder Sunder Singh alias Sunder in pursuance of whichis letter from S.S.P. Tek chand, Gurgaon, to D.I.G. Hissar about the plan for false encounter
(11) On 31-8-1976, Sunder was arrested at Jaipur. It is allegedthat thereafter Sunder made applications to the Magistrate at Jaipurthat there was a danger to his life at the hands of Delhi Police.
(12) On 3-9-1976, the Chief Judicial Magistrate, Jaipur, passed anorder that Sunder may not be transferred to other State without completing investigation of the cases at Jaipur. However, on 24-9-1976,the Chief Judicial Magistrate, Jaipur, ordered his handing over tothe police in view of non-bailable warrant issued by a metropolitanmagistrate of Delhi, but directed that two officers of Rajasthan Policeshould be part of the escort party while transferring Sunder from Jaipur to Delhi. Before this order was passed, it is the case of theprosecution that Inspector Amarjit Singh (A-5) entered the chamberof Mr. Saxena, Magistrate, at Jaipur, and told him inter alias that'RAJASTHAN Police Ne Ise Hauva Bana Rakha Halhame Mil Jave To Do Din Men Thikane Laga DENGE'whereupon the Magistrate had asked him to leave his Chamber and letthe law take its own course. It is further stated that while escortingSunder to Delhi from Jaipur, accused Rohtas Singh (A-3) had remarked that 'SUNDER Tera Waqat Aa Gaya HAI'. LaterSunder had protested when an attempt was made to show him to someof the witnesses whereupon the accused R. K. Sharma (A-2) hadremarked 'TERI Shanakhat Krane Se Hamara Kayamatlab Hai, Tujhe Toe Vaise Hi Paar KARNAHAI' and accused Amarjit Singh (A-5) clarified 'TERISHANAKHAT Karne Kl Kaun Himmat KAREGA. Tujhethikane Lagaya JAIGA'.
(13) On 25-9-1976, Sunder was remanded to Judicial custody andremained there till 27-10-1976. Sunder was subjected to test identification parade in several cases but could be identified in only onecase and that too only by one witness. It is further the case of theprosecution that during judicial custody Sunder made four applications.to the courts repeating the complaint that he apprehended grave danger to his life. One of these applications was forwarded by the ChiefMetropolitan Magistrate, Delhi, to D.I.G. Delhi. In due course, thiswas passed on to the Superintendent of Police (Vigilance). It wasalleged that Shri P. S. Bhinder, D.I.G. had sent for the file in question from the office of the S.P. (Vig) and the same as well as copiesof the applications sent to S. P. (E) and S. P. (N) and S. P. (Central)are not available now.
(14) On 29/10/1976, Sunder had shown willingness to getthe service rifle of constable Sultan Singh who had been shot dead byhim on 11/08/1976, recovered but later on he changed his,mind which resulted in his being subject to torture whereupon Sundermade a disclosure to Shri Gurcharan Singh, Superintendent of police,that arms and ammunition were kept concealed by him. Later on, inpursuance of the disclosure statement, some of the accused personswent to village Bishnoli (U.P.) and at the instance of Sunder, recoveredcertain arms and ammunition including the rifle of constable SultanSingh from the house of one Chandrej of village Bishnoli. No recoverymemo was prepared and no report was made regarding the same inany police record or at the concerned police station. Instead. Cuircharan Singh, S.P. directed Inspector Rohtas Singh to show the recovery of these arms in his own jurisdiction and on 4-11-1976 thesevery arms and ammunition were falsely shown as having been recovered from Beriwala Bagh, Gharoli, in the jurisdiction of policestation Farash Bazar. It is alleged that this recovery was falselymade in pursuance of disclosure statement purported to have beenmade by Sunder. Case F.I.R. No. 456 of 1976 was then got registered by Inspector Rohtas Singh at Police station, Farash Bazar.
(15) It is the further case of the prosecution that on 22-11-1976,Ram Chander Kaushik (A-13) falsely recorded 'a disclosure statement'of S'under which was actually never made by him. On the basis ofthe said false disclosure statement, further police remand was takenup to 26-11-1976.
(16) It is then alleged that on 23-11-1976, S.I. Chatar Sen ofPolice Station, Seelampur had recovered various arms and ammunitionfrom the house of one Mst. Khair-ul-Nisa. He brought these armsto the police station Seelampur whereupon D.S.P. R. K. Sharma andInspector Amarjit Singh (A-2 and A-5) had also reached there. Later,S.P. Gurcharan Singh and D. S. P. Sukhdev Singh also reached The police station. All the four accused saw the said arms and S. P. Gurcharan Singh directed S. 1. Chatar Sen that the two rifles and cartridgesmay not be mentioned in the recovery memo and these were accordingly not shown in the recovery memo.
(17) Then comes the allegation of the prosecution regarding theevening of 24-11-1976.
(18) The prosecution allegations are that on 24-11-1976 in theevening. S.P. Gurcharan Singh and D.S.Ps. R. K. Sharma andSukhdev Singh were driving to police station Shahdara via JamunaPushta Road. D.S.P. R. K. Sharma and D.S.P. Sukhdev Singh pointed out and showed Pontoon Bridge, Geeta Colony Cremation Groundand the Kacha Path leading to river Jamuna to S.P. Gurcharan Singhand at that time they were discussing about Sunder.
(19) Thereafter, the prosecution case is that on 24-11-1976 at about6.45 P.M. S.P. Gurcharan Singh held a meeting in the office room ofaccused R. K. Sharma which was attended by R. K. Sharma, SukhdevSingh, the two D.S.Ps. and the four Inspectors Rohtas Singh, Harkesh,Amarjit Singh all accused and the witness Dal Chand. At that time,a broad plan to kill Sunder was laid down, and S.P. Gurcharan Singhtold them to take further details from Sukhdev Singh accused and tofollow him strictly and to inform him immediately after the plan wasexecuted. Later, Sukhdev Singh, D.S.P. held a meeting of therest of the officers. Apart from the officers who had attended theearlier meeting, except the Superintendent of Police, it was also attended by accused S. R. Vohra, Rajeshwar Prasad Gautam, RajinderSingh, Dharampal Singh, Ram Chander Kaushik, all sub-inspectors.The witness Dal Chand had also attended the second meeting. At thesecond meeting accused Rajeshwar Prasad, asked Sukhdev Singh D.S.P.'SAHIB Marwa Toe Nahin DOGE', whereupon SukhdevSingh replied that there was nothing to worry because the plan hadthe clearance of D.I.G. Bhinder.
(20) It is the further case of the prosecution that after the first meeting the Superintendent of Police, Gurcharan Singh, asked his staffdriver Hardwari Lal (witness) and Swantantrapal (Head Constable)Wireless Operator (also a witness) to report at 3 in the morning.The case of the prosecution is that in the second meeting arranged bySukhdev Singh on the evening of 24-11-1976, the detailed plan toliquidate Sunder by drowning him in river Jamuna after showing a falserecovery was explained by D.S.P. Sukhdev Singh.
(21) The prosecution case now is that in pursuance of the agreedplan at about 7.45 P.M. the Police party consisting of accused RajKumar Sharma, Rohtas Singh, Harkesh, Parsu Ram and SukhdevSingh, S. R. Vohra, Rajinder Singh, Dharam Pal Singh, RajeshwarPrasad, and R. C. Kaushik (A-2, A-3, A-4, A-6-11 and A-13) and afew other police officials and a panch witness Kailash Chander Jainleft police station Shahdara for Gias-ud-Din Tomb in Tughlakabad inthree jeeps and a pick-up along with Sunder in handcuffs. Sunderwas in the immediate physical custody of constable Parsu Ram withchain of the handcuffs hooked in his web belt. Before proceeding,a bag containing arms and ammunition which was proposed to be shownfalsely as recovered from Gias-ud-Din Tomb was taken from the office-room of D.S.P. Raj Kumar and kept in the jeep in which SukhdevSingh, D.S.P. was traveling along with Kailash Chander Jain andothers to the place. Before departure a false disclosure statement wasrecorded by Ram Chander Kaushik on the basis of which the aforesaidfalse recovery was planned to be shown.
(22) On reaching Tughlakabad, the bag containing arms and ammunition was taken to a place on the real of Gias-ud-Din Tomb and afalse recovery of arms and ammunition was shown consisting of tworifles, two hand-grenades and one pistol and some ammunition.The said country-made rifles were the same which were brought fromSeelampur police station on the previous day from the house of Khairul-Nisa by S.I. Chatar Sen.
(23) It is further the case of the prosecution that even before thecompletion of the formalities of the alleged recovery, accused R. K.Sharma and Sukhdev Singh had paid a visit to police station Kalkajito persuade S.H.O. police station Kalkaji to register a case aboutthe recovery. After completing the formalities at the Tomb, the entireparty including R. K. Sharma, Sukhdev Singh went to police stationKalkaji and a case was got registered under the Arms Act on thebasis of false F.I.R. lodged by accused R. C. Kaushik.
(24) Now comes the crucial prosecution case. It is then allegedthat at about I A.M. on 25-11-1976, the police party, except RamChander Kaushik (accused A-13) Inspector Dal Chand, Om Prakash,Police Photographer, and Kailash Chander Jain (public witness)left police station Kalkaji on return journey to Shahdara. They stoppedon the way at an 'ashram' and took tea and 'mathees'. On starting from the 'ashram', the accused Harkesh shifted to the rearof the pick-up. After the vehicles had crossed Income Tax Officer Bridge, Sunderwas overpowered by Sub-Inspectors S. R. Vohra, Rajeshwar PrasadGautam, Rajindra Singh, Dharampal Singh and Inspector Harkesh. Inthe pick-up itself, the arms of Sunder were twisted to his back and thenhandcuffs were put on both the hands. His mouth and legs were tiedwith clothes. On reaching near Geeta Colony cremation ground, thehead lights of the vehicles were put off and after getting clearance fromAmarjit Singh who had already reached there with a party, the vehiclesproceeded to the bank of the river. On reaching near the bank, Sunderin tied-up condition was taken out by Inspector Harkesh and fourSub-Inspectors, namely, S. R. Vohra, Rajeshwar Prasad Gauttam,Rajinder Singh and Dharampal Singh. Raj Kumar Sharma, Dsp alsostepped into the water to ensure that Sunder was kept submerged inthe water until he was dead.
(25) It is the further case of the prosecution that accused RohtasSingh, Amarjit Singh and Dsp Sukhdev Singh had stood on the bankof the river watching Sunder being killed by drowning in the river.At that time, one Gopal Dass, Assistant Sub-Inspector was also presentwho had been brought by Amarjit Singh, Inspector and Sho ofpolice station Shahdara. Gopal Dass had been brought without disclosing him the real purpose but he stood on the bank of the riverwatching Sunder being killed in the aforesaid fashion.
(26) It was thus alleged that Sunder was killed on the fateful nightof 24th/ 25/11/1976 at about 0215 hours by drowning himforcibly in river Jamuna.
(27) After Sunder was killed his dead body was taken out of thewater and kept back in the pick-up by Inspector Harkesh, assisted bySub-Inspectors S. R. vohra, Rajeshwar Prasad Gautam, Rajinder Singhand Dharampal Singh. The pick-up was then driven to a place near thePontoon Bridge and the body was again taken out. In the meanwhile,a rope was tied to the loose end of the chain of the handcuffs bothof which were now put on the right hand of the deceased. The bodywas then taken to the river-bank and dropped into the water and keptsubmerged. While at Pontoon Bridge, accused Amarjit Singh had, inthe meanwhile, broken two bulbs in order to darken the area.
(28) The pick-up was then asked to go on Pushta where a puncturewas made by D.S.P. Sukhdev Singh in its left rear wheel by drivinga nail into it. It is then alleged that then a drama to falsely show theescape of Sunder was staged as chalked out earlier. Constable ParsuRam rolled down from the Pushta. Accused Rajeshwar Prasad Gautam,Rajinder Singh and Dharampal Singh then ran towards Jamuna crying'BHAG Gaya Pakro PAKRO'. Accused Rajeshwar Prasad Gautamfire two shots and accused Rohtas Siagh and Dsp Sukhdev Singh thenexchanged false messages on wireless sets. A little later, S.P. Gur-charan Singh arrived on Jamuna Pushta. On reaching Jamuna Pushta,S. P. Gurcharan Singh asked Sukhdev Singh: 'KAM Theek HOGAYA' whereupon Dsp Sukhdev Singh informed S. P. GurcharanSingh 'BILKUL Theek Ho GAYA'. S.P. Gurcharan Singh Along with Sukhdev Singh then walked towards Pontoon Bridge and wentright up to the place where Inspector Harkesh was sitting holding therope tied to the chain of the handcuffs of Sunder to hold the body.It is alleged that thereafter D.I.G. Bhinder also reached there. He alsowalked up to that place while talking to S.P. Gurcharan Singh and DSPSukhdev Singh. D.I.G. Bhinder is alleged to have passed the remarks'WELL Done Chhuti HUI'.
(29) After the above, S.P. Gurcharan Singh and D.I.G. Bhinderwent to the office of the S.P. After reaching the office, S.P. GurcharanSingh arranged for Rs. 1,000 for giving reward to constable Parsu Ramand Rajeshwar Prasad (A-6 and A-9). It is alleged that this amountwas arranged by Dev Dutt, Reader to S.P. Gurcharan Singh.
(30) Toofan scheme was enforced at 0310 hours by D.I.G. Bhinder.It is the prosecution case that in spite of Toofan scheme being enforced, some police officials of P. S. Seelampur on that night were notallowed to go for patrolling and were asked to stand by until summoned.
(31) The body of Sunder was alleged to have been recovered at6.30 A.M. and was taken to the Irwin Hospital ostensibly for treatmentas if he was alive. The doctor, however, declared him dead.
(32) Along with the challan, the prosecution has filed numerousdocuments as well as a list of 211 witnesses.
(33) Shorn of the details, of the actual alleged murder, the prosecution has cited as many as six eye witnesses. They are A.S.I. GopalDass, constable Dharam Pal, constable Dharam Singh, driver JagbirSingh, driver Surinder Singh and driver Sehdev Singh.
(34) Regarding the two meetings in the room of Raj Kumar Sharma,D.S.P., the prosecution has cited Inspector Dal Chand, constable DharamSingh, Dharampal Singh and Kailash Chand Jain, a panch witness.
(35) The prosecution also relies, in support of its case, on the postmortem report as well as the statement of Dr. Vishnu Kumar recordedduring; preliminary inquiry as well as under section 161 Criminal Procedure Code . andparticularly places reliance on the following :
(1) No water in the stomach;(2) absence of froth around mouth and nose;(3) bruised right upper jaw gum-blood tinged fluid frommouth or nose;(4) sand in conjunctival sacs on both sides of eyes;(5) no water in intestines either; (6) injuries by way of abrasions on (i) right shoulder (ii) onupper back part of trunk in midline and (iii) on upperfront part of chest above left nipple;(7) sand particles in upper part of traches ;(8) lungs very much inflated ;(9) heart nothing abnormal.
(36) Besides the aforesaid eye witnesses, the prosecution also relieson the statement of wireless operator, namely. Head Constable Swantantra Pal. The prosecution also relies upon the statement of ManoharLal, a panch witness, who was also examined during preliminary inquiryand also after recording of F.I.R. and according to whom his signatureswere taken on recovery memos without anything being recovered. Theprosecution also relies on the statement of Tribhuvan Nath, Chowkidar,about the breaking of 'the bulbs on the night of the alleged incident.The prosecution also relies on the statement of Dev Dutt, Reader ofthe S.P. who deposes during investigation about the collection of moneyon 'the night of the incident for payment to accused Parsu Ram andRajeshwar Prasad Gautam.
(37) The prosecution has also cited D.I.G. Zutshi in respect of thealleged planned encounter during June, 1976. The prosecution alsorelies upon the statement of Senior Superintendent of Police Tek Chandin that connection. Besides, it relies upon the recoveries made from the house of Shrimati Khair-ul-Nisa and the statement of Sub-Inspector.Chatar Sen.
(38) The prosecution also relies upon the statement of Om Prakash,Reader to D.I.G. in respect of the file of complaints of Sunder as todanger to his life from Delhi Police and the fact of the said file notbeing available now. In this respect, the prosecution also relies uponthe statement of Balkishan, General Record Keeper.
(39) Mr. Poras Mehta who appeared on behalf of 'the prosecutionsubmitted that in the present case, a serious charge of murder has beenlevelled against police officials including the status, amongst others,of Deputy Inspector General of Police, Superintendent of Police, Dy.Superintendent of Police, Inspectors and Sub-Inspectors. It was also submitted that on a charge of murder, the learned Sessions Judge wentwrong in his entire approach while granting bail inasmuch as all that .the learned Sessions Judge at that stage was required to consider waswhether the prosecution case prima fade discloses an offence of murder.It was also submitted that at the stage of consideration of bail applications, the learned Sessions Judge ought not to have considered thestatements made by some of the witness during preliminary inquiry andthen to see whether the statements of witnesses recorded under section 161 and 164 Criminal Procedure Code . were contrary to the statements recorded in thepreliminary inquiry. It was also submitted that on the facts of thiscase, 'there is no delay in recording the F.I.R.
(40) F.I.R. has named accused persons by staling that the death ofSunder 'occurred in custody of the police party who accompanied himon the said night of 24/25-11-76' and when the column of the F.I.R.relating to name and address of 'the accused which states 'some Delhipolice personnels' is read in the light of the F.I.R. there is nothing vagueabout the identity of the accused persons. It was submitted 'that someof the eye witnesses have already stated during investigation that theirstatements to the contrary during preliminary inquiry were influenceddue to the alleged pressure by some of 'the accused persons. It wasthus submitted that there is grave danger of the material witnessesagain being tampered with during trial and the learned Sessions Judgewas not right, while granting bail, in observing in his order that 'afterall, there is little to gain by tampering with the witnesses who havethemselves already tampered with their evidence by making contradictory statements in respect of the same transaction'. It is submitted thatthere is every likelihood of the accused misusing their position andfreedom to tamper with the witnesses. It was submitted that thoughthe learned Sessions Judge in paragraph 12 of his order, observed asunder:
'I am not prepared at this stage to dissect the evidence ofthese witnesses to find out which of their two versions iscorrect. All I would say is that regardless of the fact whichparticular statement out of the two contradictory statementsmade by a witness in the past is preferred by him in thetrial for his deposition, such deposition cannot escape thetaint of unreliability in some measure or the other. Thischaracter of the evidence collected by the Cbi cannot beignored even While considering the question of bail'
yet, in fact, the learned Sessions Judge has dissected the evidence inappreciating the credibility of the' witnesses. It is submitted that thisapproach was totally erroneous. It is also submitted that the learnedSessions Judge has taken the individual events and then concluded inparagraph 15 of his order that even if the recoveries are fictitious, theproceedings do not prove or disprove any fact in issue or relevant factconcerning the alleged incident. It was submitted that the learned Sessions Judge again while dealing with the incident of the two meetings'has gone on really to dissect the evidence of the material witnesses inconsidering the same and while appreciating the statements recordedunder sections 161 and 164 Criminal Procedure Code .
(41) Before considering the application for cancellation of bailMr. D. C. Mathur, the learned counsel for the accused in Cr.M(M)456 of 1977 raised a preliminary objection that the present application is not maintainable in the High Court. This submission ran in this-fashion:
(42) It was submitted that under section 439 Criminal Procedure Code . the powers of:granting bail have been conferred on the Court of Session and theHigh Court concurrently and, thereforee, if a Sessions Judge grantsbail in exercise of powers under section 439(1) Criminal Procedure Code ., no applicationfor cancellation of the same is maintainable in the High Court under section 439(2) of the Code.
(43) Mr. Poras Mehta, learned counsel on behalf of the Stace. however, submitted that under section 439(2) the High Court is entitledto direct that any person released on bail under Chapter Xxxiii bearrested and commit him to custody. The learned counsel fur theState thus submitted that 'there are no fetters under sub-section (2) ofsection 439 on the powers of the High Court or the Court of Sessionto cancel the bail.
(44) Learned counsel for the accused, countering this argument ofthe learned counsel for the State, then submitted that if this argumentis taken to its logical conclusion, then even an order for bail grantedby the High Court can be cancelled by the Court of Session. Learnedcounsel for the accused made a further submission that the High Courtor the Court of Session while dealing with the bail application on acharge of murder is not supposed to look at or approach the questionof grant of bail as contemplated by section 437(1) Criminal Procedure Code . It wassubmitted that earlier, under the old Code, under section 497 The words 'other 'than the High Court or the Court of Session' were notthere and, thereforee, the High Court and the Court of Session underthe old Code while granting or refusing the bail under section 498used to consider the question as contemplated by Section 497(1) ofthe old Code. It was submitted that in view of the amended provisions,particularly in view of the provisions 'other than the High Court orthe Court of Session' in Section 437(1), the powers of the HighCourt and the Court of Session under section 439(1) are totally independent of the approach which a magistrate is bound to adopt whileconsidering an application for bail in respect of offence punishable withdeath or imprisonment for life. It was submitted that the introductionof the provisions like anticipatory bail under section 438 Criminal Procedure Code . andthe amendment of sec. 437(1) shows that so far as the High Courtand the Court of Session are concerned, they have absolute powers togrant bail without any fetters even for an offence punishable withdeath or life imprisonment.
(45) For appreciating the arguments of the learned counsel foraccused, the relevant provisions of the old Code of Criminal Procedure as compared to the new Code regarding the grant or refusalof bail in non-bailable offences may now be noticed :Old Code :
497.'(1) When any person accused of or suspected of thecommission of any non-bailable offence is arrested ordetained without warrant by an officer in charge of apolice-station, or appears or is brought before a Court,he may be released on bail, but he shall not be so releasedif there appear reasonable grounds for believing that hehas been guilty of an offence punishable with death orimprisonment for life :Provided that the Court may direct that any person underthe age of sixteen years or any woman or any sickor infirm person accused of such an offence be releasedon bail.(2)....................................(3).......................................(4)....................................(5) A High Court or Court of Session and, in the case ofa person released by itself, any other Court may causeany person who has been released under this sectionto be arrested and may commit him to custody.498. (1)............... -and the High Court or Court ofSession may, in any case, whether there be an appeal onconviction or not, direct that any person be admitted tobail, or that the bail required by a police-officer orMagistrate be reduced.(2) A High Court or Court of Session may cause Any person who has been admitted to bail under sub-section ( 1 )to be arrested and may commit him to custody'.
New Code :
437.'(1) When any person accused of or suspected of thecommission of any non-bailable offence is arrested ordetamed without warrant by an officer in charge of apolice station or appears or is brought before a Courtother than the High Court or Court of Session, he maybe released on bail, but he shall not be so released itthere appear reasonable grounds for believing that hehas been guilty of an offence punishable with death orimprisonment for life:Provided that the Court may direct that any person under theage of sixteen years or any woman or any sick or infirmperson accused of such an offence be released on bail:Provided further that the mere fact that an accused personmay be required for being identified by witnessesduring investigation shall not be sufficient ground forirefusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shallcomply with such directions as may be given by theCourt.437. (2) if it appears to such officer or Court at any stageof the investigation, inquiry or trial, as the case may be,that there are not reasonable grounds for believing thatthe accused has committed a non-bailable offence, butthat there are sufficient grounds for further inquiry intohis guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer orCourt, on the execution by him of a bond without sureties for his appearance as hereinafter provided.(3) ....................................(4)...................................(5) Any Court which has released a person on bail under subsection (1) or sub-section (2), may, if it considers itnecessary so to do, direct that such person be arrestedand commit him to custody'.439. (1)A High Court or Court of Session may direct-(a) that any person accused of an offence and in custodybe released on bail, and if the offence is of the naturespecified in sub-section (3) of section 437, may impose any condition which it considers necessary for thepurposes mentioned in that sub-section; .(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:Sec. 439 of the new Code :Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of- anoffence which is triable exclusively by the Court ofSession or which, thought not so triable, is punishablewith imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, forreasons to be recorded in writing, of opinion that it isnot practicable to give such notice.(2) A High Court or Court of Session may direct that Any person who has been released on bail under this Chapter be arrested and commit him to custody.'
(46) It will be noticed that under section 497(5) of the old Code,the High Court or the Court of Session could cancel the bail granted by a magistrate under section 497(1). The magistrate could alsocancel the bail granted by him under section 497(1). Under section498(2) where the High Court or the Court of Session had admitteda person to bail, the High Court or the Court of Session could cancel the bail. The powers of the High Court and the Court ofSession under section 498(1) were concurrent and were not statutorily made subject to section 497(1). Even under section 498(2),the High Court could cancel a bail granted by a Court of Session orthe High Court or the High Court could cancel a bail granted byitself. Where the Court of Session granted a bail, it would naturallycancel it if there were some new developments and in the same waywhere the High Court had granted a bail, it could cancel it if therewere changed circumstances. Again, under section 498(2) theHigh Court could cancel the bail granted by the Court of Sessioneven without change of circumstances, if the High Court consideredthat the Court of Session ought not to have granted the bail. Therewere no fetters on the powers of the High Court or the Court ofSession to grant bail under section 498(1) in spite of the provisions of section 497(1).
(47) The position has, in no way, been changed by the amendedprovisions of Section 437(1) of the new Code. The addition ofwords 'other than the High Court or Court of Session' in Section 437 is merely explanatory of the old law relating to powers of theHigh Court or the Court of Session. Under the old Code, under section 498, the powers of the High. Court or the Court of Sessionfor the grant of bail were not subject to section 497(1). In thenew Code also, the provisions of section 439(1) and (2) are similarto the provisions of section 498(1) and (2) of the old Code intheir scope and effect.
(48) Under section 439(2), High Court or the Court of Sessioncan cancel a bail granted under Chapter Xxxiii of the new Code.Under section 439(1) the High Court and the Court of Session haveconcurrent powers to grant bail without any statutory fetters on theirpower. Like section 498 of the old Code, the Court of Session cancancel a bail granted by a magistrate or by itself and the High Courtcan also cancel a bail not only granted by the Court of Session butalso by itself.
(49) When the Court of Session or the High Court cancels abail, it can cancel it on any ground if the Court feels that the bailought not to have been granted. The Court of Session, like theHigh Court, could also cancel a bail in similar circumstances, orgranted by the court of a magistrate. The Court of Session, again,could cancel a bail granted by itself but it would cancel it only If there are changed circumstances. In the same way, the High Courtcould also cancel a bail granted by itself if there is change of circumstances. The High Court can also cancel a bail granted by anysubordinate court, including the Court of Session but the Court ofSession cannot cancel a bail granted by the High Court except whenthere are changed circumstances. Merely because the Court of Session and the High Court under section 439(1) have concurrentpowers to grant bail, it cannot be said that under sub-section (2) ofsection 439, the High Court cannot cancel the bail granted by theCourt of Session under section 439(1).
(50) It is true that the Court of Session canot cancel a bail onthe same circumstances, or without any change of circumstances inwhich the High Court granted the bail. The reason is simple : Oursystem of judicial administration is based on hierarchy of courts and,therefore, without change of circumstances a subordinate court cannot cancel a bail granted by a superior court. But that cannot besaid when the High Court is dealing with cancellation of bail grantedby a subordinate court, including the Court of Session. I am, thereforee, of the considered opinion that so far as the power of grant orcancellation of bail by the High Court or the Court of Session isconcerned, the new Code has not made any change, whatsoever.
(51) Thus, the applications for cancellation of bail under section 439(2), granted by the Court of Session under section 439(1), aremaintainable in the High Court.
(52) The new Code has also made no change In the principlesfor consideration of a bail application.
(53) The principles for the consideration of a bail application innon-bailable offences where there is a prima facie case for believingthat the accused is guilty of an offence punishable with death orimprisonment for life whether by the High Court, the Court ofSession or the Court of a Magistrate, are well settled. It is truethat there are no statutory restrictions while granting bail under section 439(1) but the High Court and the Court of Session in then-judicial discretion, while dealing with an offence where the sentencecan be death or life imprisonment, have always to take into consideration various factors. Such factors have been illustrated by theSupreme Court in the case reported as the State v. Captain JagjitShigh : 3SCR622 . The factors which arenormally taken into account are :
(1) existence of a prima facie case;(2) nature and seriousness of the offence;(3) the character of the evidence;(4) circumstances which are peculiar to the accused;(5) a reasonable possibility of the presence of the accused notbeing secured at the trial;(6) reasonable, apprehension of the witnesses being tamperedwith;(7) larger interest of the public or the State and similar otherconsiderations which arise when the court is asked forbail in non-bailable offence.
(54) It is true that under section 439(1), like section 498 of theold Code, the powers of the High Court and the Court of Session inthe matter of granting bail are very wide; even so where the offenceis non-bailable various considerations, as those indicated above, havealways been taken into account before the bail is granted in nonbailable offence.
(55) It may also be mentioned that the time which the trial courtis likely to take is also a factor to be taken into account, but notdisjunctively from the other factors mentioned earlier.
(56) It will be noticed from the resume of facts given earlier thatout of the six eye witnesses cited regarding the alleged actual murder,ASI, Gopal Dass was examined under sections 161 and 164 Cr.PCand was not examined during preliminary inquiry. Out of the otherfive eye witnesses, Jagbir Singh and Surinder Singh were examinedunder section 161 as well as on oath under section 164 Cr.PC. IT is true that they were examined during the preliminary inquiry andduring the preliminary inquiry they did not support the prosecutionversion but in their statements under section 164 Criminal Procedure Code given onoath, they have given reasons for not doing so earlier. The reasonhas been given on oath and the reason is in view of pressure beingexercised by the accused R. K. Sharma or accused Harkesh.
(57) The other eye witnesses, Dharam Pal constable, DharamSingh constable and Sahdev Singh driver, in their statements under section 161 Criminal Procedure Code have also given reasons why they did not supportthe prosecution during the preliminary inquiry.
(58) Regarding the case of the prosecution about the allegedbogus recovery proceedings staged on the night of 24/11/1976, there is the statement of 'panch' witness fully supporting theprosecution case during preliminary inquiry as well as during investigation. The other 'panch' witness Kailash Chand Jain has beenexamined under section 164 Criminal Procedure Code on oath as well and he has giventhe reason for not supporting the prosecution case during the preliminary inquiry in view of pressure being exercised by InspectorRohtas Singh. In his statement under section 164 Cr.PC, he fullysupported the prosecution version.
(59) In a criminal trial, the evidence consists only of the statements given on oath before the court who tries the case. the accused are ordinarily entitled to challenge the testimony of witnessesexamined in court with reference to the statements said to have beenmade by them before the investigating officers. The statementsmade by witnesses earlier are a valuable material for testing theveracity of the witnesses examined in court. It is for the trial courtto examine which version to accept and whether sufficient reasonshave been given for accepting the version given in the court asopposed to the version given during investigation. Merely becausesome of witnesses examined during preliminary inquiry do not support the prosecution case fully does not mean that there was noprima facie case.
(60) The expression 'prima facie' case simply means that thereshould be evidence which, if believed, is liable to result in conviction. At the stage of bail, the court is not concerned with the truthfulness or otherwise of the deposition of the witnesses at earlier stageduring investigation or inquiry.
(61) All factors have to be weighed and balanced. It is clearfrom the statements of some of the witnesses recorded on oath under section 164 of the Code before the magistrate that pressure wasbrought to bear on them for not fully supporting the posecuticn caseduring preliminary inquiry. The reasonable apprehension of thewitnesses being tampered with cannot thus be ruled out. Nor can itbe said that there was no prima jacie case of the prosecution for theserious charge of murder. There could have been no charge moreserious than that. At the stage of bail, it is not the province of thecourt to minutely appreciate the evidence or dissect the evidence vis-a-vis the alleged statements made by the witnesses earlier to the contrary. That is the province of the court who conducts trial.
(62) The learned Sessions Judge though rightly observed in hisorder that 'this is not the stage to dissect the evidence', yet fell intothe error of dissecting it. Again, the approach appears to be as ifgrant of bail was the rule and the prosecution had to show reasons forwithholding the bail. This approach was totally against settled principles of consideration of bail applications in serious offences like murder.
(63) Again, the observations of the learned Sessions Judge that evenat the stage of filing F.I.R. the State was not able to make up its mindas to who the accused are is not called for. The observation that thedepositions of the eye witnesses daring investigaition 'cannot escapethe taint of unreliability in some measure or the other' was netnecessary. It will depend on the explation of the particular witnessgiven at the trial whether the court believes it or not.
(64) The observations regarding the tampering of witnesses, alreadynoticed earlier, also discloses the total fallacious approach. Some ofthe witnesses have given reasons on oath of the pressure being broughton them by some of the accused and of serious consequences ensuingif they did not heed to the pressure.
(65) The factor of delay in recording the F.I.R. is again a matter forconsideration but not at this stage. It will be for the prosecution toexplain it during trial.
(66) The observations about the prosecution case regarding takingout of the deceased from the 'havalat' and staging a false recovery asmade in paragraph 15 of the order are again not understandable.The prosecution case is that the deceased was taken out of the'havalaf on the excuse of false recovery to enable them to executetheir plan for committing the alleged offence.
(67) Again, the observations about Parsu Ram in paragraph 16are not understood. The observations regarding the witnesses DalChand and Gopal Dass are also not understandable. This was notthe stage for appreciating their evidence.
(68) The learned Sessions Judge was again not right in consideringthe bail applications and passing one of the impugned orders dated 1/08/1977 a few days before the filing of the charge-sheet.If the charge-sheet had been filed, the learned Sessions Judge couldhave then examined the whole matter in proper perspective.
(69) Mr. Mulla, learned counsel for the accused, however, submitted that the law regarding bail has undergone vital change duringthe last few years and the Court should consider the human factorsand grant bail even if the prosecution shows the existence of a primafacie case. It was further submitted that the defense version isconsistent with the medical evidence and particularly the report ofthe post-mortem.
(70) Mr. Mathur, who appeared along with Mr. Mulla, took methrough various passages in Modi's Medical Jurisprudence, Glalster'sMedical Jurisprudence and a book on Forensic Pathology by AbdullahFatteh and Taylor's Medical Jurisprudence, and tried to submit that thepost mortem report is consistent with the defense version that it wasa case of accidental drowning.
(71) It was also submitted that Sunder was a desperate criminal.Large number of cases were pending against him. He had shot constable Sultan Singh and, thereforee, he was making false allegationagainst Delhi Police as he had realised that Delhi police would showhint no quarters.
(72) Learned counsel also referred to the fact that the eye witnessGopal Dass could not have been present at the spot in view of certainentries in the daily diary of the police station concerned. The learned counsel also assailed the statement of Swatantra Pal recorded duringinvestigation as being inconsistent with the testimony of the other witnesses examined during investigation.
(73) Learned counsel for the accused also cited some cases whereduring trial of a murder case, a particular accused person had beenenlarged on bail.
(74) It may be that the defense version is consistent with themedical evidence but that is not the correct approach. At this stage,the court is really not concerned with the defense version unless theprosecution is totally inconsistent with the medical evidence.
(75) I am also not in agreement with the learned counsel thathuman factors had to be taken into account. The human factors whichare well recognised relate to the age of the accused and/or the accusedbeing a female or such similar circumstances. Merely because the accused are government officials and that too police officials is notsuch a human factor as to be very relevant for the grant of bail.
(76) Again, it will not be correct for the Court to go into the nicetics of reliability of the statement of Gopal Dass or the inconsistencies inthe statement of Swatantra Pal as compared to the testimony of theother witnesses examined during investigation. If I go into thosematters in detail, I will be falling into the same error which thelearned Sessions Judge committed.
(77) Again, the instances where the accused in murder cases wereenlarged on bail are of no avail. Every case depends on the peculiarfacts and circumstances disclosed in it. One case is not a precedentfor the other. The question which should be looked into at this stageis only whether certain well recognised factors which govern the granting or refusal of bail have been followed or not, and after followingthem what would be the result.
(78) Whether it is the Court of Session or the High Court, itcannot ignore the prima fade case for the prosecution. The consideration of a prima fade case is a must.
(79) Mr. Sethi, who appeared on behalf of the accused in Cr. (M)474 of 1977, adopted the arguments of Mr. Mulla and also submitted that this Court should not interfere with the discretion exercisedby the learned Sessions Judge.
(80) Considering the nature of the offence, character of the evidenceincluding the fact that some of the witnesses during preliminary inquiry did not fully support the prosecution case; the reasonableapprehension of witnesses being tampered with and all other factorsrelevant for consideration while considering the application for grantor refusal of bail in a non-bailable offence punishable with death orimprisonment for life, I have no option but to cancel the bail. I amof the considered view that the learned Sessions Judge did not exercisehis judicial discretion on relevant well recognised principles and factorswhich ought to have been considered by him.
(81) I would, thereforee, accept the applications of the State under section 439(2) Cr.PC. The orders dated 1-8-1977 and 11-8-1977passed by the learned Sessions Judge are set aside, the sureties and thebail bonds furnished by the accused-respondent are cancelled with ?direction that they be taken into custody forthwith.
(82) I may also observe that the learned trial court should not be,in any way, influenced one way or the other during trial by any ofthe observations made hereinabove. These observations are limitedonly for the purpose of these applications.