H.L. Anand, J.
(1) This petition under Section 439(2) read with Section 482 of the Code of Criminal Procedure, by one Rajinder Prashad, we seeking cancellation of bail granted by the Additional Sessions Judge, by his order of October Ii, 1983 to Mahesh and his two brothers, Ashok and Ramesh in case Fir No. 299/83 under Sections 302/34 of the Indian Penal Code, arising out of the death, following burns caused by acid, of Saria Devi, wife of the petitioner, on the night between September 6-7, 1983 does not call for any innovative approach to the well settled rule regarding grant of bail and wellknown principles for its cancellation, but the investigation branch of the local police comes out completely battered as, in an otherwise hotly contested proceeding in this court, between the two families who have fairly longstanding hostility, there was her agreement that the investigation was partial to one or the other of the parties, and if the investigation has since not concluded, it should be entrusted to the Central Bureau of Investigation.
(2) There has been longstanding hostility between Rajinder, petitioner, and his two brothers, Laxmi Narain and Shiv Narain, on the one hand, and Pyare Lal and his three sons, Mahesh, Ashok and Rarnesh, who are respondents I to 3 in the petition, on the other. The hostility is, inter alia, reflected in a number of criminal cases filed or pending. Both the families, even otherwise, are not strangers to the criminal court or the police system and these are amply reflected by serious allegations on both sides of pendency of number of cases against members of both the families. It, however does appear at a cursory look at the lists of these cases that the family of Pyare Lal, to which the three respondents-accused belong, are involved in cases which are, by and large, at the instance of the families of the petitioner, while the petitioner and his brothers were also involved and are still involved in cases which may perhaps have nothing to do with the other family.
(3) Be that as it may, it is alleged that on the night between 6th/7th of September, 1983, while the petitioner and his wife Saria Devi, were asleep on the terrace of their house, the three respondents came over to the terrace by scaling the wall and set the petitioner and his wife 'on fire while they were asleep'. The petitioner and his wife allegedly received burns, he got up and claim to have seen the three respondents running away from the terrace. They raised alarm but the respondents allegedly 'made good their escape'. While the petitioner immediately ran to the local police station and made a report on which he was taken to hospital, the victim, Saria Devi, was taken to the hospital from the house by Munni Devi, wife of the petitioner's elder brother. While in his report to the police, the petitioner merely recounted the incident but did not implicate any of the respondents, on the other hand, when Saria Devi arrived at the hospital, Along with Munni Devi, a report was recorded by the Police constable, on duty in the hospital, to the effect that according to Munni Devi, the victim was burnt by the three respondents but the statement of Munni Devi, according to the report, was challenged by the victim who alleged 'that acid burns were caused by her husband.' After an hour or so of this, she was declared fit to make a statement and made a statement in the presence of a doctor which was recorded by a police officer at 1.50 a.m. on the morning of September 7, 1983. This statement, which is described as a dying declaration, is drawn in high flown Urdu and in this, she clearly implicated all the three respondents. She allegedly had hundred per cent burns on the body. Petitioner also had burns on his body. Soon after the statement of Saria Devi was recorded, she died. The dying declaration could not be recorded by a Magistrate, nor was any police officer, other than one who recorded it, was present.
(4) It was alleged that Sarla Devi was the second wife of Rajinder Prasad, and that the first one had committed suicide some years ago. It was further alleged that Sarla Devi had not been validly married to Rajinder Prasad out had, of her own free will married, without the consent of her mother, one Jagdish Parsad of Modi Nagar, and at the instance of her mother, a case of abduction had been registered against him and he was absonding.Meanwhile,the mother of Saria Devi had allegedly given her daughter in marriage to Rajinder Parsad.
(5) The course of investigation has not been a smooth one. Allegations and counter-allegations of partiality have been made against the investigating officers from time to time by both the parties. Investigation was also transferred from local police to the dowry death cell of the Delhi Police. The principal controversy in the cause of investigation, as indeed, before the learned Additional Sessions Judge, as if it was a case of husband burning the wife by acid who got acid burns on his body also in the process and found the incident handy to falsely implicate the respondents, as suggested by the respondents, or a case in which respondents, in order to wreak their vengeance against the family, scaled the wall of the house at mid-night and threw acid on both husband and wife, but made good their escape. In additions to the infirmity on account of the consents of the first report of the petitioner to the police, and of the report recorded by the constable on duty in the hospital, the theory of the respondents scaling the wall to commit the alleged act was sought to discounted, inter alia, on the ground that one of the respondents, Ramesh had a serious renal colic condition, had been receiving treatment in hospital and was, thereforee, physically unfit to scale down a high wall. It was also alleged that the investigating staff has not been able so far to come across any eye-witness of the locality or any of the neighbours, even though it was admittedly a densely populated area in which the incident allegedly occurred. A number of other infirmities were also pressed into service to counter the plea for cancellation of bail but in view of the pendency of investigation and the likelihood of the matter being sent up for trial, it would be a rather delicate exercise to discuss the pros and cons of the rival versions or to comment on the various features of the case, whether favorable to the case sought to be set up by the petitioner or the defense sought to be propounded on behalf of the respondents. An elaborate examination of this aspect of the matter is bound to prejudice a just and fair investigation and eventual trial, if any.
(6) The learned Additional Sessions Judge accepted the plea for bail primarily on two grounds, namely, the entry made by the constable on duty in the hospital in which the victim alleged to have been burnt by acid by her husband, and the possibility of false implication of the respondents, in place of the husband, in the backdrop of long standing hostility between the two families. These two grounds, to my mind, eminently justified grant of bail in the situation that obtained, when the order was made, but some of the later disclosures made in this court appeared to further fortify the case for bail viz. the total absence of any mention of respondents in the first ever report by Rajinder Parshad to the local police, and his unusual conduct that instead of rushing his wife to the hospital, he should have instead gone to the police leaving it to his sister-in-law Munni Devi to take the victim to hospital. These prima facie constitute unusual conduct which may cast doubt, at least at this stage, on the version of the petitioner. It is, however, unnecessary to comment on how his first wife had died, and as to the circumstances in which the victim had been married to the petitioner, having already married another person on her own, but without the consent of her mother, and the alleged pendency of a case of adduction arising out of the incident. There are allegations and counter-allegations as to the course that the investigation took but the Investigating Officer admitted, when called before the Court Along with the records, that no eye-witness of the incident from the area had so far come forward to support the version of the petitioner. This circumstance, as indeed, the entry by the constable on duty in hospital, were sought to be explained on behalf of the petitioner on the ground that this was the result of the partiality of the investigating officers to the respondents. That, however, is a matter that needs further investigation.
(7) None of the respondents are previous convicts. The Administration has not sought cancellation of their bail. The element of vendetta in seeking cancellation could not be ruled out. It was not alleged that any of the respondents are likely to abscond or were not co-operative in the course of investigation or that they would not be available at the trial. Some of the respondents are involved in criminal cases, but it was not disputed that, by and large, they were the result of hostility between the two families. Petitioner's own family has not come out unblemished in the scrutiny of records of pending cases. Cancellation of bail is not sought on the ground of any supervening circumstances or any threat to any witness or to the residents of the area. There is, thereforee, no ground for cancellation.
(8) The learned Additional Sessions Judge was, however, not justified in granting unconditional bail to the three respondents, particularly having regard to the past history of hostility between the families, and the fact that the respondents were involved in some cases, even though at the instance of the petitioner, and the other members of the family. Both the parties accuse the local police of partiality in the course of investigation and have been making allegations and counter-allegations since almost the inception of investigation. The investigation has also been, by and large, fairly tardy.
(9) Having regard to all the circumstances, I would direct that :
A) Respondents would furnish personal bonds each in the sum of Rs. 2000.00 with one surety each in like amount to the satisfaction of the Registrar of this Court undertaking to abjure violence and to be of good conduct during the pendency of the investigation,and the trial, if any;
B) Any one of the respondents would report to the local police at once a month;
C) The investigation, if not already completed, be carried out under the direct supervision of the Deputy Commissioner of Police, to whom it may be assigned by the Commissioner of Police, in his discretion. If the Investigation has since concluded but the challan is yet to be filed, the Deputy Commissioner would make a full review of the investigation before the challan is filed. The investigative agency would interrogate all such persons, whose examination may be Sought by either of the parties.
(10) The investigating agency, as indeed, the court Which may eventually be seized of the trial, if any would come to their own conclusions on the material before them uninfluenced by any expression of that may have been expressed above. Whatever has been said above was intended for the limited purposes of determining if the material on record justified cancellation of bail.
(11) A copy of the order be forwarded to the Commissioner of Police for compliance in terms of the direction made in para 9(c) above.
(12) Subject to the aforesaid directions. Cr. M(M) 97/84 and Cr. M. 200/84 fail and are hereby dismissed. Cr.M. 201/84 by Which investigation was sought to be transferred, partly succeeds and is disposed of in the aforesaid terms.