G.M. Lodha, J.
1. Sua and four others have filed this bail application Under Section 438, Cr.P.C. They apprehend that they will be arrested in Case No. 28/81 dated 20.6.81 lodged at P.S. Roopangarh for an offence Under Section 302, I.P.C. The offence relates to murder of one Rameshwar, whose dead body was found near the field. Though the case was registered on 20.6.81, it was argued by Mr. Shrimal, that no evidence whatsoever has been recorded against these accused, and even that police under the pressure of the complainant party wants to arrest these persons.
2. The learned P.P. could not controvert the allegation that there was no evidence against these persons, but submitted that the police is not going to arrest these persons till any reliable evidence comes on the record. It was also pointed out that so far only a few witnesses have said that some days before this incident, Hanuman had a quarrel with Rameshwar deceased and they had threatened Rameshwar that he would be murdered. According to the P.P., this evidence is not sufficient to arrest the accused, and, therefore, the apprehension of the petitioners is ill founded.
3. Mr. Shrimal, learned Counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in Gurbaksh Singh Sibbia v. The State of Punjab : 1980CriLJ1125 Relevant part of para 19 which reads as under:
An order of anticipatory bail does not in any way directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. In fact, two of the usual conditions incorporated in a direction issued Under Section 438(1) are those recommended in Sub-section (2)(i) and (ii) which require the applicant to co-operate with the police and to assure that he shall not tamper with the witnesses during and after the investigation. While granting relief Under Section 438(1), appropriate conditions can be imposed Under Section 438(2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of likely discovery Under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State to of U.P. v. Deoman Upadhyay (1261) 1 S.C.R. 14 at p. 26 : 1960CriLJ1504 to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. The broad foundation of this rule is stated to be that Section 46 of the Cr.P.C. does not contemplate any formality before a person can be said to be taken in custody; submission to the custody by word or action by a person is sufficient. For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under Section 167(2) of the Code is made out by the investigating agency.
4. In view of the above observations, Mr. Shrimal submits that the petitioners would co-operate with the investigating agency for investigation and would submit to the investigating agency as and when they are called, but that should not come in the way of granting anticipatory bail. It was also argued by the learned Counsel, for the accused that the submission of the P.P. that the accused would not be arrested on this evidence would result in deprivation of the liberty by the accused, because on the pretext of any fresh evidence they will be arrested, as the complainant party is very keen to harass and humiliate the accused. To substantiate his submission he submitted that even before this Court the complainant party has engaged a private counsel A.K. Gupta to contest this bail application, which sufficiently proves his allegation, mentioned above.
5. I have carefully considered the above submission of the learned Counsel for the parties. Mr. Shrimal, Mr. A.K. Gupta and also Mrs. Kamla Jain P.P. and I am of the opinion that the fact that from 20.6.81 till now even after the expiry of one and a half month, the prosecution has not been able to collect even iota of evidence against the accused except the evidence of motive for two accused, which makes the present case of an exceptional nature for the purposes of consideration of anticipatory bail. It is true that normally Under Section 438, Cr P.C. in heinous offences like murder the court is slow to release the accused on bail. But, there cannot be any blanket prohibition and for more than one and a half month the prosecution agency which is actively associated by the, complainant who has engaged a counsel in this Court, has failed to procure any evidence direct or circumstantial to connect any of the five accused with the crime. I am, therefore, inclined to accept the contentions of the learned Counsel for the petitioners that in a situation of this type the prosecution should not be allowed a free hand after such a long period to arrest the accused on account of the keenness of the complainant only by recording any evidence.
6. The result is that this bail application is ^accepted and it is ordered that in the event of arrest of the accused petitioners, Sua son of Bhura, Gangaram son of Sukha, Sukha son of Jairam, Mana Son of Bhura, Hanuman son of Sukha, in F.I.R. No. 28/81 dated 20.6.81, P.S. Roopangarh District-- Ajmer, the S.H.O. P.S. Roopangarh shall release the above named accused-petitioners on bail, provided each of them furnishes a personal bond of Rs. 10,000/- with two sureties of Rs. 5,000/- each to his satisfaction on the following conditions:
(1)That he shall make himself available for investigation by a police officer as and when required.
(2)That he shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.
(3)That he shall not leave India without the previous permission of the Court.