M.L. Shrimal, J.
1. This application by the accused petitioner, Om Prakash, under Section 439, Criminal Procedure Code, 1973, for being released on bail is directed against the order, dated March 2, 1979, by learned Additional Sessions Judge, Dholpur, whereby he cancelled the bail granted to the accused-petitioner by learned Chief Judicial Magistrate, Shri R.R.P. Bhatnagar; vide his order, dated October 23, 1978.
2. On August 18, 1978, 11 miscreants, including the petitioner, Om Prakash in pursuance to a criminal conspiracy, after having been armed with deadly weapons, raided the house of Shobha Ram (since deceased). Eight of the miscreants were clad in Khaki dresses and the remaining three were putting on ordinary clothes The prosecution case is that Om Prakash filed a shot towards Shobha Ram, as a result where of he met instantaneous death. The son of the de eased, Moolaram was also dragged out and was then, abducted by the culprits. On August 31, 1978. Om Prakash returned to the village and demanded a ransom of Rs. 40,000/- for the return of the child and informed Sarwan Lal that if the relatives of the child were interested to have him alive, they should proceed to the ravine of the river Ontegan at 4 p.m. with Rs. 40,000/- and receive the child after making payment of the ransom He also threatened that in case an information was given to the police, the child would be done to death Information of the warning was given to the Additional Superintendent of Police The raiding party divided itself into two group) and on reaching the spot the police had to encounter the cuprites All the iris reams, except Om Prakash, escaped. The accused-petitioner was arrested and the child Moolaram was recovered. First information report for offences under Sections 147, 148, 149 and 307, IPC, was recorded, with which this Court is not concerned at present. The incident, relating to the occurrence of August 18, 1978, was reported at the Police Station, Rajakheda, on Auaust 19, 1978, at 6 a.m. Consequently case No. 149 of 1978, under Section 302, IPC, was registered. The report at that stage did not mention the names of the accused persons. It was, however, stated therein that the author of the first information report and other persons had noticed the physical features of the accused and that they could well identify them as and when shown to them. Names of some of the witnesses were also given in the first information report.
3. The police, after registering the case, prepared the site-plan on August 19, 1978, and examined Antram, Mohan Singh, Laxmi Narain, Nimuwaram, Motiram and Netram. On August 20, 1978, Roshan and Padma were examined. They stated that the accused had muffled faces. Accused Ram Prakash and Jagdish were arrested on August 23, 1978, and Om Prakash was arrested on September 1, 1978. Moola was examined soon after his release from the clutches of the miscreants on September 1, 1978, The same day Sarwan Lal and Moola's uncle Ram Prakash were also examined by the police. Moola was forwarded to the Magistrate for recording his statement under Section 164, CrPC. He was examined in the Court on September 27, 1978 Mst. Kishandei w/o Shobharam was examined under Section 164, Cr.PC., on September 12, 1978. Witness Sarwan Lal was examined under Section 164, Cr.P.C. on September 19, 1978. Sarwan Lal and Ram Prakash stated in their police statements, recorded on September 1, 1978, that they had identified the accused Om Prakash and his brother as well as Pooran. The family members of Shobha Ram had identified the accused-petitioner Om Prakash, Bigharam (absconder) and Pooran on the spot, but they did not name them earlier because of fear that in case they disclosed their names, there was imminent danger of the life of Moola.
4. The police, after usual investigation, submitted a challan on October 18, 1978, against 14 persons, wherein accused Pooran has been shown one of the absconders. Three accused persons, namely, Om Prakash, Ram Prakash and Jagdish were forwarded to the Court under arrest. Learned Chief Judicial Magistrate submitted to bail accused Om Prakash and Jagdish vide his order, dated October 23, 1978 and thereaftwr on December 15, 1978, committed all the accused, including the petitioner to the Court of Sessions under Sections 302 and 364, IPC. With the above background the State Government had moved the Additional Sessions judge for cancellation of the bail, granted by learned Chief Judicial Magistrate, alleging therein all the facts involving accused Om Prakash in the crime. It was also mentioned that at the initial stage of the investigation name of Om Prakash was not disclosed by the family members as well as other persons, though he had been identified on the spot as one of miscreants, because they were under a fear that in case they disclosed his name, Moola would be put to death. It was further mentioned that there was a grave apprehension of the witnesses being tampered with by the accused persons and instances for attempt to tamper the witnesses were also cited. This application was supported by affidavits filed by Ramjilal, Mohan Singh, Ram Prakash and Antram.
5. Learned Chief Judicial Magistrate keeping in view the fact of non-mentioning the name of accused Om Prakish in the first information report as also in the statements recorded on August 19, 1978 and in the site-plan as one of the accused, admitted the accused to bail Learned Additional Sessions Judge, on the other hand, set aside the order of the Magistrate, considering the nature of the offence, character of the evidence, including the fact that come of the witnesses during preliminary stage of the investigation did not name the accused-petitioner, but later on they gave a reasonable explanation for that Besides that, Moola and his mother Mst. Kishander named Om Prakash as and when they were examined for the first time by the police. Learned Judge keeping in view reasonable apprehension of witnesses likely to be tampered with and other relevant factors, including the factor that offences are punishable with death or imprisonment for life, cancelled the order of the Chief Judicial Magistrate and he sent the accused to judicial custody; vide his order, dated March 2, 1979.
6. Mr. M.B.L. Bhargava, appearing on behalf of the petitioner, laid great stress on the point that the accused petitioner war a teacher in the village. He is M.A., BEd. He was known to the villagers and if he would have been on the scene of the occurrence, he would have been named in the first information report. Besides, he is lame person and the witnesses could have at least mentioned in the first information report that one of the perused was crippled or limping Learned Counsel emphatically urged that because of a pre-existing enmity between the deceased and the accused the close relatives of the deceased implicated him falsely. Reliance has been placed on an application, dated August 29, 1978, alleged to have been submitted to the Deputy Superintendent of Police, Anti-Corruption Department, Bharatpur, on August 30, 1978. wherein it was mentioned by Mst. Omwati, wife of accused-petitioner Om Prakash, that her husband was taken into custody by the police on August 24, 1978, and had not been released so far. On the basis of this application it was urged that, the accused-petitioner Om Prakash's arrest memo, dated September 1, 1978, was a forged document.
7. In support of the arguments advanced by learned Counsel for the petitioner reliance has been placed on State of Orissa v. Brahmananda Manda : 1976CriLJ1985 regarding the effect of late-disclosure of the name of the accused by the eye witnesses. He has also cited B.L. krishna Swain v. State of Orissa : 1971CriLJ670 , (sic) Singh v. State of Rajasthan 1972 Cr. L.J. 824, State v. Vijia Ram 1968 RLW 1 and Biharisingh Madho Singh v. State : AIR1954SC692 and on the basis of the ratio decidendi of these cases it has been urged that the witnesses, who do riot name an accused for a pretty long time or who are not examined within a reasonable time, could not be relied upon by the prosecution to incriminate' an accused in a serious crime like murder.
8. Sub-section (1) of Section 437, Cr.P.C., 1973, reads as under:
437(1) When any person accused of or suspected of the commission, of any non-bailable officer is arrested or detained without warrant by an officer in charge of a police station or appears or is brought be fore a court other than the High Court or court of Sessions, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offince punishable with death or imprisonment for life.
The word's 'if there appear reasonable grounds for believing that be has been guilty of an offence punishable with death or imprisonment for life' are of significance. Whenever a person is arrested fend produced before a court by the police, there should be material produced before the Colin to show the nature of the case he is involved in. If from the material available there appears reasonable ground for believing that the person has been guilty of an offence punishable with death or imprisonment for life, the court has no other option but to commit him to custody. At that stage the court is concerned with the existence of material against the accused and not as to whether or not such materials are credible for the purpose of conviction. Learned Magistrate was not alive to the legal position that until the eye witnesses were examined in the trial court of Additional Sessions Judge, it could not be said that no reliance could be placed on these witnesses. The witnesses stated on path under Section 164, Cr.C.P., as well as at a later stage of the investigation that they had omitted the name of the accused Om Prakesh due to fear that in case he was attempted to be arrested by the police, the co-accused of he himself Knight commit the murder of Moola, Whether the theory of fear is believable or not is a matter which will be determined' at the trial & the learned Magistrate in fret committed an error in approaching the case from a wrong angle and making unwarranted remarks about the credibility of the evidence prematurely. The only question which was required to be considered at that stage was whether or not there was a prime facie case made out, as alleged in the statements of the witnesses. There appeared at that stage at least nothing against the statement of Moola, who had made no earlier statement The taici of unreliability could not,be attached to his statement even for the reason given by the learned Magistrate. Whether the statement of Moola and his mother Mst Kuhardei, Saiwaii Lal and Ram Prakesh would ultimately be held to be trun worthy will bean issue at the stage of trial In considering the question of bail cf an accused in a non-tailab e offtnee, punishable with death or imprisonment for life, the only point to be considered was whether or not the evidence disclosed a prima facie case against the accused to warrant his detention in jail. At that stage unless the Magistrate was called upon to act under the provisions of Section 437(2), Cr.C.P., bail appeared to be out of question in the circumstances of the case. In considering the question of bail justice to both the sides governs the judicious exercise of court's discretion. The Supreme Court in Stole v. Capt Jageet Singh : 3SCR622 while Setting aside the order of the High Court granting bait, observed that the High Court committed a basic error in treating the case, falling under Section 5 of the Official Secrets Act, which is a bailable, offence and not raising an assumption under Section 3 of the Act, which is non bailable offence. It is on account of this basic error that the Supreme Court interfered with the order of bail granted by the High Court. This case was followed in Gurcharan Singh and Ors. v. State (Delhi Administration) A.I.R. 1978 S.C. 179.
9. Besides, the learned Magistrate should have kept in view that four of the prosecution witnesses on oath stated that the accused petitioner Om Prakash's position created a fear in their mind. The perusal of the record also show that prior to this case Om Prakash was being prosecuted under Section 216A, IPC, for harbouring robbers and dacoits with the intention of facilitating the commission of robbery or dacoit or screening them from punishment. The challan in that case shows that Om Prakash at the time of filing the report under Section 173, CrPC, was an absconder. Thus, the order of learned Magistrate in releasing Om, Prakash on bail was not at all justified and learned Additional Sessions Judge, after a thorough examination of the record and keeping in view the allegations made by the prosecution witnesses in their affidavits regarding a serious attempt being made by accused Om Prakash and his absconding brother to tamper with the witnesses, rightly reached the conclusion that there was imminent danger of the accused tampering with the prosecution witnesses.
10. Having regard to the gravity of the offence of which the accused is being prosecuted and the nature of the evidence as well as the details mentioned in the affidavits, filed by the prosecution for cancellation of the bail, it can be said prima facie that the prosecution has been able to bring home prima facie that there ate reasonable circumstances to arrive at a conclusion that accused, Om Prakash would use his position to tamper with the prosecution witnesses & he would continue to indulge in that course of conduct, if he was released on bail.
11. At present I am concerned with the conduct of the petitioner and not with the re action of the witnesses. They may or may not stick to their earlier statement. The power to cancel bail was exercised by the Bombay High Court in Madhukar Purshottum v. Tulab Haji Hussain 1972 Cr.L.J. 824, where the accused was charged with a bailable offence. The test adopted by that Court was whether the material placed before the Court was such as to lead to the conclusion that there was a strong prima facie case that if the accused were allowed to be at Urge, he would tamper with the prosecution witnesses and impede the course of justice. An appeal preferred by the accused against the judgment of the Bombay High Court was dismissed by Hon'ble the Supreme Court. The same view has been expressed by Hon'ble the Supreme Court in Gurcharan Singh and Ors. v. State (Delhi Administration) (supra).
12. Keeping in view the various considerations, such as nature and seriousness of the offence, the character of the evidence, circumstances peculiar to accused, reasonable apprehension of evidence being tampered with, the chances of accused impeding the course of justice by jumping the bail, interest of the public and checking the repetition of the similar offence by the petitioner, the lower court was justified in cancelling the bail.
13. In the result I disallow the application, which is hereby rejected. At the same time I direct the prosecution to produce Moola Mst. Kishandei, Sarwan Lal, Ram Prakash, Mohan Singh or any other witness, whom it may consider material on the first date of recording of the evidence and it would be open to the accused to move a fresh application for bail before the trial court after the examination of these witnesses. Learned Additional Sessions Judge is also directed to hear the arguments regarding framing of the charge within one month from the receipt of the record and there after fix the date of recording the evidence within two months.