ORDER These are three revision applications bearing Nos. 12/72 12-A/72 and 15/72. The first two are filed against the orders dated 7-7-1972 and 12-7-1972 of the Sessions Judge and the third one against the order dated 18-10-72 of the Additional Sessions Judge. All the three applications arise out of the same incident and the respondents in the three applications are alleged to have participated in the murder of one Parag Naran the deceased husband of Bai Laxmiben, the petitioner in all the three revision applications. I shall, therefore, dispose of all the three applications by one judgment. 2. Shortly stated the case of applicant, Bai Laxmiben, and also the case of the police who filed the charge-sheet against the five accused who are the respondents in these three applications, is a follows : 3. At 22.00 hours on 6-3-72 Vithalbhai Premabhai Patel driving a station wagon/jeep reached Hirabai Patel to Kachigan. Ravia Gopal, Ramu Khalpa and Parag Narayan, the deceased, were also travelling in the jeep. Vithalbhai reached Hirabhai to Kachigan, returned from there and proceeded to Marwar. As his jeep reached Varkund junction at about 00.20 hours on 7-3-72 a Fiat Car bearing No. MRF 8108 belonging to Laxman Tandel, the accused No. 1 in this case sped up and started driving side by side to the jeep of Vithalbhai. Somebody from the Fiat Car asked Vithalbhai to stop his jeep. Vithalbhai stopped it. The five accused, namely, Laxmanbhai Lallubhai Tandel, Fakir Zalak, Vallabh Kika, Makan Bapan and Sukar Narayan Tandel alighted from the car and were approaching the jeep. Some of the accused were armed with pistols. Vithalbhai got frightened and put the jeep in motion. The accused got into the Fiat car and went on a chase after the jeep. They fired about 7 and 8 rounds. One of the shots wounded the deceased. When the jeep and the car were about to reach the first house near Daman the car vanished. The jeep went to the house of Lalu Jogi along the main road. The mataji to Lalu Jogi by name Jijabai was in the house. Jijabai and others took the deceased to the hospital where he died. 4. When the jeep and the car were about to reach the first house near Daman the car vanished. The jeep went to the house of Lalu Jogi along the main road. The mataji to Lalu Jogi by name Jijabai was in the house. Jijabai and others took the deceased to the hospital where he died. 4. Vithalbhai lodged a complaint to the police which was recorded by P.S.I. Aga of Daman Police Station on 7-3-72 which was registered as First Information Report under Crime No. 12/72 about 2 hours and 20 minutes after the incident. On the same day Laxman Lallu, Fakir Zalak and Vallabh Kika accused Nos. 1, 2 and 3, respectively were arrested and an order for their remand to police custody was obtained on 8-3-72. The remaining two accused Makan and Sukar could not be arrested. Two days later, on 10-3-72, the first three accused made an application for bail which was granted by Shri Nirmal, the then Judicial Magistrate, First Class, Daman. On 16-6-72, over three months after the incident and arrest of the first three accused, an application was made by the police to the Court for obtaining a warrant of arrest of Makan and Sukar, accused Nos. 4 and 5, on the ground that summons had been issued to them under Section 160 of the Criminal Procedure Code on 31-5-72 for their appearance in the police station for the purpose of investigation of the crime, and that the two accused were avoiding the service of summons. It is stated in the application that summonses were issued to them under S. 160 of the Criminal Procedure Code for their appearance before the Police Station Officers and that both of them were avoiding the service of summons. This application for warrant was rejected by the J.M.F.C., Daman, Shri Bhatta by his order dated 19-6-72. On 27-6-72 another application for warrant against these two accused was made. In this application also it is stated that twelve summonses dated 29-5-72, 31-5-72, 20-6-72, 21-6-72, 23-6-72 and 26-6-72 had been issued against them to secure their presence at the police station for carrying on further investigation, but that both of them were avoiding service of summons. This application was also rejected by the order of Shri R. K. Bhatta dated 1-7-72. This application was also rejected by the order of Shri R. K. Bhatta dated 1-7-72. During the investigation, statements of 24 witnesses were recorded by the Police and the charge-sheet was filed in the Court on 28-11-72 against all the five accused. 5. On 4-7-72 Makan surrendered to the Court and the same day made an application to the Court for bail which was opposed by the police and dismissed by Shri Bhatta by his order of the same date. In the application for bail Makan stated that he normally lived in Bombay and that he had learnt that the police wanted to arrest him in connection with crime No. 12/72. The application was made about 4 months after the incident. Makan did not state when the learnt that the police wanted to arrest him. Neither did he make any reference to the summonses issued to him by the police to his house at Parkota Sheri, Nani Deman. He did not state that he or his family did not at all reside at Parkota Sheri, Nani Daman nor that his house was vacant, nor that he or any member of the family or persons staying in the house at Parkota had not avoided receiving the summons. He stated in the said application that from the facts stated in the F.I.R. there was no possibility of the eye-witnesses identifying the culprits; that the F.I.R. was lodged at 2.45 a.m. and that the police carried out a thorough investigation and nothing incriminating had been found or discovered against him and others. It is not known how he came to know about these facts. 6. When Makan surrendered to the Court and made an application for bail, the police made to the Court an application for remand of Makan to police custody, and the Court granted the application and remanded Makan to the Police custody till 11-7-72. 7. On 6-7-72, before the date on which the period of remand expired, Makan made an application to the Sessions Judge, Shri Coelho, under Section 498 of the Criminal Procedure Code, wherein he states, inter alia, as follows :- He was an active supporter and worker of Shri Haribhai Vallabhbhai Tandel of Deman who was elected as a member of the Legislative Assembly on a Congress Ticket in the Election that took place on 11-3-72. Shri Lallubhai Jogibhai Patel the rival candidate lost the election. Shri Lallubhai Jogibhai Patel the rival candidate lost the election. Lallubhai is a resourceful man of immense wealth and has pressed all fair and foul means into service to defeat Haribhai. Lallubhai, therefore, implicated him and the other accused in the murder of Parag which is said to have taken place on 7-3-72 at about 00.20 hours at the Vapi Daman main road near Varkund crossing. After the alleged incident the jeep went to the house of Lallubhai with Parag though the police station was hardly at a distance of 10 minutes from the place of occurrence. They remained at the place of Lallubhai for a considerably long time without any reason though their primary concern should be to report the matter to the police and forthwith seek medical treatment. Instead of resorting to police and medical help the complainant Vithalbhai, injured Parag and their mercenary associates happened to first visit their master, financier and leader Lallubhai at his residence which was at a far off distance with an ulterior intention to seek his advice and to create a political atmosphere out of the said alleged incident. Lallubhai master minded the "situation and thought of the whole incident not in the proper perspective of rendering immediate services to the injured inmate, but to convert the said incident as a case of murder of the said Parag by attributing the same falsely to his erstwhile political opponents viz., the said Haribhai and 5 accused including myself (Makan)". The aim of Lallubhai was to take revenge against Haribhai Tandel and paralyse his election propaganda machinery. Nothing was found against the first three accused, who were released on bail by the Magistrate who in his elaborate judgment came to the conclusion that there was no evidence worth mentioning so as to reasonably connect the persons mentioned in the F.I.R. to the commission of the crime. The police deliberately made it appear that he was not available to them and that he was an absconded refugee from justice. Sensing the police tactics and manoeuvres of the opponents and being a law abiding citizen he voluntarily appeared before the Court on 4-7-72 and made an application for bail. There are no circumstances or tangible objective evidence to connect him to the alleged occurrence. 8. Sensing the police tactics and manoeuvres of the opponents and being a law abiding citizen he voluntarily appeared before the Court on 4-7-72 and made an application for bail. There are no circumstances or tangible objective evidence to connect him to the alleged occurrence. 8. In short the application for bail made by Makan to the Sessions Court under S. 498, Criminal Procedure Code was made on the grounds that he was involved in the case on account of political rivalry; that nothing incriminating was found against the first three accused who were for that reason released on bail; that there was no tangible evidence connecting him and the other accused to the crime; that he was not absconding; and that he voluntarily appeared before the Court on 4-7-1972. 9. The order of the Sessions Judge dated 6-3-72 granting bail to Makan is challenged on the following grounds :- (1) That though Section 498, Criminal Procedure Code is not controlled by Section 497(1) and the powers under Section 498 are wider than those under Section 497(2), the Court, whilst granting bail under Section 498, has to take into consideration the bar of Section 497(1). (2) That the material on record and other circumstances relevant to the case had to be taken into consideration and were not taken. (3) That an application made under Section 498, Criminal Procedure Code can be granted only if special circumstances are shown, which, in the present case do not exist. 10. The Learned Sessions Judge held that though the provisions of Section 497 of the Criminal Procedure Code were independent and the Court could release the accused on bail under Section 498 even if there are reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life, the Court had to be guided by the principles enunciated by Section 497(1). The application for bail was made on 6-7-72 and was heard and disposed of on the 7-7-72. The roznama does not show that the record and proceedings of the Court of Daman were called for. In fact they could not possibly be received by the Court within one day. The judgment of the Learned Sessions Judge clearly shows that he has not considered the material on record at all. The roznama does not show that the record and proceedings of the Court of Daman were called for. In fact they could not possibly be received by the Court within one day. The judgment of the Learned Sessions Judge clearly shows that he has not considered the material on record at all. All that he states in his judgment is "that there is no reasonable ground to accept the accused/applicant having had a hand in the commission of the offence". The order is based on two grounds. The first is that the fact that Makan did not report to the police for about 4 months is not enough to connect him to the crime and the fact of abscondence was not by itself sufficient proof of guilt. He relied on AIR 1966 All 607 = (1966 Cri.L.J. 1369), wherein it was held that abscondence is not itself enough to justify conviction. The second ground on which the application of Makan was granted was that since there had been sufficient time for the police to collect evidence there was a reasonable apprehension in Judge's mind that the investigating agency might be tempted to have recourse to third degree methods in order to extract confession from the accused or fabricate discoveries. 11. It appears to me that the Learned Sessions Judge went totally wrong when he passed his order on the reasons which were of minor relevance without taking into consideration the material that the police had gathered during the investigation and some other circumstances appearing on record. In AIR 1966 All 607 = (1966 Cri.L.J. 1369), relied upon by the Learned Judge the question decided was that abscondence even for more than 7 weeks was not sufficient proof of "guilt" and not enough to justify a "conviction". In the present case we are not concerned with abscondence for the period of 7 weeks only nor are we concerned with guilt or conviction of the accused. Shri Rajani Patel, learned counsel for Makan has been fair enough to concede that the Judge ought to have considered the material on record. He, however, urges that the entire case should be considered by me and a decision given on merits irrespective of the validity of the order of the Sessions Judge. 12. I have gone through the statements of the witnesses recorded by the Police. There were three eye-witnesses. He, however, urges that the entire case should be considered by me and a decision given on merits irrespective of the validity of the order of the Sessions Judge. 12. I have gone through the statements of the witnesses recorded by the Police. There were three eye-witnesses. All three of them identified Makan when the accused got down from the car at Varkund junction. The other witnesses have deposed regarding the factum of the crime. I also carefully went through the Police diaries. There is material on record showing that Makan was absconding or, at any rate, avoiding service of summons of appearing before the Police. From the Police diaries, the material on record and the application for warrant made by the Police, it could not be said that the accused was not influential enough to cause hindrance to the smooth running of the investigation and other proceedings. I would not like to go in detail into the material that was placed before me as it might unduly influence the mind of the committing Magistrate. 13. The application of Makan was made under Section 498, Criminal Procedure Code and yet not even a semblance of a special case for releasing the accused on bail was made out under that section. I entirely agree with Shri Krishnakant Desai, learned Advocate for the petitioner, that powers under Section 498 should be used only if the accused, who would not be entitled to be released on bail because of the bar of Section 497(1), had made out a special case other than a case spoken of by Section 497 (2), which would enable the Court to release him on bail. All along Makan tried in his application before the Sessions Judge, to prove that his case fell within the purview of sub-section (2) of Section 497 and in this respect I have already considered the case of Makan whilst disposing of the second contention raised by the applicant. The learned Sessions Judge was grossly at error in disposing of the application of Makan in the manner in which he did. I have therefore to set aside his order and restore the order of the learned J.M.F.C. remanding Makan to Police custody. 14. I shall now proceed to dispose of the Revision application No. 12-A, filed against the order of the Sessions Judge, dated 12-7-1972, releasing Sukar on bail. 15. I have therefore to set aside his order and restore the order of the learned J.M.F.C. remanding Makan to Police custody. 14. I shall now proceed to dispose of the Revision application No. 12-A, filed against the order of the Sessions Judge, dated 12-7-1972, releasing Sukar on bail. 15. The case of the applicant and of the Police as far as Sukar is concerned is similar to the one sought to be made against Makan. Six summonses were issued against him by the Police requiring him to appear before them for the purpose of investigation of this case. There is material to show that the Police made several attempts to get him. An application for warrant of arrest was also made and according to the Police strenuous efforts were made by them to arrest Sukar. It is common ground that Sukar is a permanent resident of Daman. The Police have given in detail the steps that they had taken to round him up. Not a word is said by Sukar in his application made to the Sessions Court, justifying his failure to comply with the summonses issued by the Police requiring him to attend the Police Station for the purpose of inquiry. As in the case of Makan, there is ample material to show that he was wanted by the Police. The first three accused had been arrested. Six summonses had been issued against him and applications had been made to the Court for obtaining a warrant of arrest. The Police also tried to arrest him. It is stated that he was seen in Daman. From the fact that the Police arrested the first three accused, it may be that they sought the help of the court by way of a warrant of arrest because they were finding it difficult for some reason or the order to arrest sukar and Makan. The fact that difficulty was experienced by the Police to arrest Sukar even though Sukar was permanently residing in Daman speaks volumes as to the power of Sukar to avoid being arrested. 16. On 12-7-1972 Sukar instead of surrendering to the Police at Daman travelled all the way to Goa and surrendered himself of the Sessions Judge at Panaji, who by his order which is impugned in this revision application released him on bail. 17. 16. On 12-7-1972 Sukar instead of surrendering to the Police at Daman travelled all the way to Goa and surrendered himself of the Sessions Judge at Panaji, who by his order which is impugned in this revision application released him on bail. 17. The contentions raised by the applicant regarding the order passed by the Sessions Judge against the application of Sukar made under Section 297 are :- 1. That Sukar was not under any restraint and the learned Sessions Judge had no jurisdiction to release him on bail; and 2. That the material on record and other circumstances relevant to the case which had to be taken into consideration by the Judge were not taken. 18. The first point need not detain me long. Long standing difference of opinion as to whether, what in normal parlance is called anticipatory bail, can be granted by the court, has now been set at rest by the Supreme Court. The view taken by some of the High Courts that a person could be released on bail even if he were under no restraint appears to have been taken on account of the following words occurring in Section 497(1) :- "When any person ........ suspected of the commission of any non-bailable offence ..... appears ....... before a Court, he may be released on bail." This view appears to have been taken because the meaning of the word "bail" was not considered. Now that the question that no bail can be granted, unless the person is under some restraint, is settled, the only point left for my consideration is whether Sukar was in any way under restraint. The word "appears" in Section 497(1) refers to appearance in court and consequently the restraint must also be on account of a court order. The fact that Sukar was wanted by the Police would permit him to "surrender" to the Police but not to the Court. The learned Sessions Judge therefore had no jurisdiction to grant bail to Sukar and on this lone ground his order could be set aside. 19. However, the second contention raised by the petitioners has also to be upheld for the same reasons for which the contention was upheld in the case of Makan. What I have said in regard to this contention as regards Makan holds good as regards Sukar. 20. 19. However, the second contention raised by the petitioners has also to be upheld for the same reasons for which the contention was upheld in the case of Makan. What I have said in regard to this contention as regards Makan holds good as regards Sukar. 20. Sukar has stated in his application that he suffers of Myocardial ischemia and diabetes and that his life would be in danger is he is kept in jail. Besides the bare word, there is no statement or averment or a medical certificate in support of this contention. Added to it is the fact that his application for bail is not made under Section 498, Criminal Procedure Code, but under Section 497(2) a section under which special cases of illness of the accused are of no relevance. 21. Much was made of the fact that Vithal and his companions did not take the jeep straight to the hospital for urgent medical attendance of Parag or to the Police Station for safety. The case of the accused is that instead of taking these two urgent steps Vithal and his companions went first to the house of Lallubhai who was on bitterly enemical terms with Shri Haribhai Vallabhai Tandel on account of election rivalry and that Lallubhai took advantage of the incident to master-mind the plan by which the accused could be involved. Apart from the cry "mar gaya" uttered by Parag when he was wounded there is no material to indicate that Vithalbhai, Ravia and Ramu were aware of the seriousness of the injury. Parag was conscious. He was bleeding but the haemorrhage was more internal than external. We cannot abstract ourselves from psychological considerations which in similar circumstances act upon the mind of persons who, on account of serious danger to their lives, are under such mental stress that they can take no other decision except to seek safety. The jeep went to Marwar along the main road. The Police Station according to what was stated at the Bar is a little away from that road and a digression had to be made to reach it. The hospital is near the main road but a few yards before the house of Lallubhai. The incident took place at Varkund junction at about 00.20 hours on 7-3-72. This time is approximate and not accurate. The hospital is near the main road but a few yards before the house of Lallubhai. The incident took place at Varkund junction at about 00.20 hours on 7-3-72. This time is approximate and not accurate. After they reached the house of Lallubhai and when the jeep was opened they noticed that Parag's condition was serious. Lallubhai was not at home and his mataji Jijabai Patel took Parag to the hospital. The records of the hospital show that Parag was admitted at 1 O'clock. The formalities of admission must have taken some five to ten minutes. It appears to me that all the facts that I have narrated would in normal course take approximately 40 minutes. The argument that was sought to be built on the alleged delay in taking Parag to the hospital has no foundation, more so, because the concoction of the case against the accused is said to have been inspired by Lallubhai who happened to be absent when Vallabhai and his companions reached his house. It is not stated in the applications of the accused that the idea of foisting the case upon the accused came first to the mind of Vithalbhai or his companions and that they went to Lallubhai only to finalize their nefarious plan. Vithal and the other travellers of the jeep could not be sure that Lallubhai would take advantage of the incident and fabricate a case against the accused. It appears therefore plausible that what took Vithal and others on a straight dash to the house of Lallubhai was more the instinct of self-preservation. 22. In the case of Sukar also the revision application must be allowed and the order of the learned Sessions Judge dated 12-7-1972 releasing Sukar on bail must be set aside. 23. I now come to the revision application No. 15 of 1972 filed by the petitioner against the order of the J.M.F.C. Daman, Shri Nirmal, releasing accused Nos. 1 to 3, namely, Laxman, Fakir and Vallab. 24. These three accused were arrested at 00.12 hours on 12-3-1972 and they were produced before the Magistrate on the next day. The Magistrate, Shri Nirmal, remanded the accused to Police custody for two days only though the offence alleged to have been committed by the accused was that of murder punishable under Section 302, Indian Penal Code. 24. These three accused were arrested at 00.12 hours on 12-3-1972 and they were produced before the Magistrate on the next day. The Magistrate, Shri Nirmal, remanded the accused to Police custody for two days only though the offence alleged to have been committed by the accused was that of murder punishable under Section 302, Indian Penal Code. I can't help saying that the attitude of the learned Magistrate was rather strange and was not in consonance with the practice normally followed by the courts of law in our country. The statements of the eye-witnesses had been taken and some material about the commission of the offence had been collected before the accused were produced before the Magistrate. On 10-3-1972 i.e., two days later, the three accused made an application for bail and the leaned Magistrate Shri Nirmal released them on a bail of Rs. 10,000/- each, by his order dated 10th March, 1972. Two days was according to any standards, utterly insufficient time to collect additional material of great importance in a case of murder. In as much as the learned Magistrate did not give to the police sufficient time to collect additional material his order can be considered to be, for all practical purposes, an order passed under Section 497(1) and therefore an order hit by the bar of the second part of sub-section (1). 25. The application for bail made by the first three accused was made under Section 497(2), Criminal Procedure Code. In the order passed by the learned Additional Sessions Judge in revision the learned Judge held that when an accused person wanted to avoid the bar against the release of a person on bail, imposed by Sub-section (1), by resorting to the provisions of Section 497(2), the burden lies on the accused to satisfy the Court that there are no reasonable grounds, to believe that he had committed an offence punishable with death or imprisonment for life; and that it was not for the Magistrate to get himself satisfied about the lack of those grounds. The learned Additional Sessions Judge has wisely observed that in a case of murder where there were eye-witnesses to be heard, pistols to be recovered and other acts of investigation to be done, it appeared inexplicable that the Magistrate should grant only 2 days of Police custody, when the Police had asked for 14. The learned Additional Sessions Judge has wisely observed that in a case of murder where there were eye-witnesses to be heard, pistols to be recovered and other acts of investigation to be done, it appeared inexplicable that the Magistrate should grant only 2 days of Police custody, when the Police had asked for 14. The learned Additional Sessions Judge went on to say "in our day-to-day practice, we see that for cases of much lesser gravity, the Magistrates usually grant at least five to seven days Police custody in order to enable the Police to investigate the offence." He ends by saying that he had gone through the investigation papers which were called for by him from the Police and that he felt that the investigation in this case must have suffered because of the release of the arrested accused. These and other observations made by the learned Additional Sessions Judge are entirely in conformity with the remarks made by me whilst considering the material on record. Unfortunately the learned Additional Sessions Judge abstained from making a report to this Court on grounds which are not relevant to the merits of the case. His statement that the case of the accused is not "so strong" as to enable the Court to cancel bail, is rather vague. It appears that in the opinion of the learned Additional Sessions Judge the case against the accused was strong but not strong enough to permit him to cancel the bail. It seems to me that there is no need of a "strong case." The existence of "reasonable grounds" would suffice to commit the accused to jail. I have considered the material on record at length and I find that there were sufficient grounds for the Magistrate to refuse bail to the accused Laxman and Fakir. The second reason given by the learned Additional Sessions Judge for not interfering with the order of the Judicial Magistrate in spite of the opinion expressed by the Judge that the Magistrate should not release the accused on bail is entirely strenuous to the case before us. 26. About the accused Vallabhai, however, on the basis of the material on record I have to agree with the Magistrate that this accused must be released on bail. 27. 26. About the accused Vallabhai, however, on the basis of the material on record I have to agree with the Magistrate that this accused must be released on bail. 27. Before I part with this case I would like to sound a note of warning that I should not be taken to have pronounced myself either on the guilt of the accused who are committed to jail or on the innocence of the one who is released on bail. ORDER 28. The revision application No. 12 against Makan is allowed and the order of the Sessions Judge dated 7-7-1972 is set aside. The order of the J.M.F.C. Shri Bhatta is upheld. The accused Makan is remanded to Judicial custody for a period of 14 days. The J.M.F.C., Daman shall be at liberty to pass any order that he may deem necessary on the expiry of the remand period. 29. The revision application No. 12-A is allowed and the order of the Sessions Judge dated 12-7-1972 releasing the accused Sukar Narayan Tandel on bail is quashed. 30. The revision application No. 15 of 1972 is partly allowed and the order of the J.M.F.C., Daman, Shri Nirmal dated 10-3-72, releasing the accused Laxmanbhai, Lallubhai and Fakirbhai Ranchhodbhai is set aside and these two accused are remanded to judicial custody for 14 days. The J.M.F.C. Daman shall be at liberty to pass any order that he may deem necessary on the expiry of the remand period. The order of Shri Nirmal, regarding Vallabhai Kikabhai is upheld and Vallabhai is ordered to be released on bail on the same terms and conditions as he was released by the Order of the J.M.F.C., Daman dated 10-3-1972. Order accordingly.