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2001 DIGILAW 1408 (PNJ)

Asa Singh v. State of Punjab

2001-12-18

M.L.SINGHAL

body2001
JUDGMENT M.L. Singhal, J. - Through this Crl. Misc. petition filed under Section 439(2) of the Code of Criminal Procedure, Asa Singh has prayed for the cancellation of bail allowed to Bachan Singh, Bhajan Singh and Harpal Singh accused in case FIR No. 347 dated 28.9.99 under Sections 306/323/34 Indian Penal Code of PS Sadar Jalandhar in view of the provisions of Section 167(2) of the Code of Criminal Procedure by Additional Chief Judicial Magistrate, Jalandhar. Facts :- 2. The prosecution case, in brief, is that Surender Singh and others are brothers. Smt. Raj Kaur (who lost her life in this occurrence) was the wife of Surender Singh. Her jeth Bachan Singh did not have cordial relations with his brothers namely Surender Singh and others since 2-3 months prior to 9/99. There was bad blood in their house being generated by Bachan Singh towards his brother Surender SIngh and other brothers and he was on fighting spree with them. 3. At about 9 PM on 27.9.99, Surender Singh went out of the room for bathing. In the meantime, Bachan Singh came from his shop and started quarrelling with Surender Singh saying where he was going and what he was staring at. Smt. Raj Kaur brought her husband Surender Singh inside. Bachan Singh started pelting brick-bats. Raj Kaur brought her husband out asking him to run away so that quarrel came to an end. Her jeth Bachan Singh and his wifes sisters husband Bhajan Singh and Harpal Singh alias Pal caught hold of Surender Singh and Harpal Singh and gave him beating. Raj Kaur made lot of entreaties to them. Raj Kaur entreated to them a lot that they should spare her husband. They caught hold of her as well and said "bring kerosene and finish her and how she was behaving". Pala brought kerosene from his house. Bhajan Singh caught hold of her, Bachan Singhs son also caught hold of her. She made lot of entreaties to spare her. Bachan Singh and his son poured kerosene of her and set her ablaze. Two of the accused kept holding Raj Kaurs husband Surender Singh in their grips and he was given severe thrashing. Surender Singh and Raj Kaur raised raula and they all ran away. Her husband put a bed sheet on her and extinguished fire. Thereafter, Pala and Bachan Singhs son and daughters came there. Two of the accused kept holding Raj Kaurs husband Surender Singh in their grips and he was given severe thrashing. Surender Singh and Raj Kaur raised raula and they all ran away. Her husband put a bed sheet on her and extinguished fire. Thereafter, Pala and Bachan Singhs son and daughters came there. She was in bad shape, she was loaded in a car and taken to Shingara Hospital where her another jeth Kashmir Singh came. Kashmir Singh said that they would not keep her in Shingara Hospital. She was accordingly taken to Civil Hospital, Jalandhar and got admitted there. Bachan Singh and others took away her husband Surender Singh who had also come to Civil Hospital, Jalandhar to prevail upon him so that he did not proceed into the matter. As her condition worsened, she was taken to Sacred Hospital, Jalandhar where she was put under treatment. Matter was reported to the police by Raj Kaur when she was in Civil Hospital, Jalandhar on 28.9.99. On the basis of her statement, case FIR No. 347 was registered under Sections 307/34 Indian Penal Code at PS Sadar, Jalandhar. 4. As Raj Kaur was nearing death, her statement was got recorded by the police. Shri Pushpinder Singh, Judicial Magistrate First Class, Jalandhar recorded her statement in which the reiterated what had been stated by her to the police. Raj Kaur died due to the burn injuries received by her at the hands of Bachan Singh, Bhajan Singh, Harpal Singh, etc. on 27.9.99. Offence was converted into one under Section 302 Indian Penal Code in the wake of the death of Raj Kaur. 5. During investigation, the police came to the conclusion that Raj Kaur was not ablaze by the accused, rather she committed suicide on the abetment of the accused. After investigation, accused were challaned under Sections 306/323/34 Indian Penal Code. 6. On 6.1.2000, Bachan Singh, Harpal Singh and Bhajan Singh made an application before Additional Chief Judicial Magistrate, Jalandhar praying that they should be released on bail in view of the provisions of section 167(2) of the Code of Criminal Procedure, as the police had failed to put up challan within 60 days of the date of their arrest. It was alleged in that application that the offence defined in section 306 Indian Penal Code was punishable with imprisonment for a period not exceeding 10 years. It was alleged in that application that the offence defined in section 306 Indian Penal Code was punishable with imprisonment for a period not exceeding 10 years. Additional Chief Judicial Magistrate, Jalandhar vide order dated 7.1.2000 ordered their release on bail in view of the provisions of Section 167(2) of the Code of Criminal Procedure. It was observed that the challan against them was presented on 27.12.99. Bachan Singh and Bhajan Singh were arrested by the police on 5.10.99, Harpal Singh was arrested on 2.10.99. It was observed that on 27.12.99, their arrest was more than 60 days old and therefore, they deserved to be released on bail under section 167(2) of the Code of Criminal Procedure, as there is command of the legislature against keeping a person in custody for more than 60 days without the presentation of the challan if the offence is punishable with imprisonment for a term not exceeding 10 years. 6. It was submitted by the learned counsel for the petitioner, who is the real brother of Raj Kaur deceased, who has moved this application for cancellation of bail allowed to Bachan Singh, Bhajan Singh and Harpal Singh by exercise of the powers vesting in him under Section 167(2) of the Code of Criminal Procedure, that it was a clear case falling within the mischief of Section 302 Indian Penal Code made out from the statement of Raj Kaur which became dying declaration after her death. It was submitted that the police had no business to disbelieve Raj Kaur whose statement became dying declaration after her death. It was submitted that she reiterated before the Magistrate also what she had stated before the police. It was submitted that there was no reason to go behind what she had stated before the Magistrate. It was submitted that accused should have been challaned under section 302 Indian Penal Code even if there was no corroboration to the dying declaration made by Raj Kaur because dying declaration alone, without being corroborated, can form the basis of conviction. It was submitted that there is no law which requires dying declaration to be corroborated before the same can be acted upon. It was submitted that the police became unreasonable when it believed the manipulated statements of Bachan Singh and Surender Singh vis-a-vis the dying declaration made by Raj Kaur first before the police and then reiterated before the Magistrate. It was submitted that there is no law which requires dying declaration to be corroborated before the same can be acted upon. It was submitted that the police became unreasonable when it believed the manipulated statements of Bachan Singh and Surender Singh vis-a-vis the dying declaration made by Raj Kaur first before the police and then reiterated before the Magistrate. It was submitted that the police manipulated the statements of Surender Singh that his wife went to the kitchen, poured kerosene on her, set her ablaze and came out. It was submitted that it was a clear case of murder committed by Bachan Singh etc. and the police should not have challaned the accused under sections 306/323/34 Indian Penal Code, instead, police should have challaned them under Sections 302/323/34 Indian Penal Code. 7. Learned counsel for the respondents accused, on the other hand, submitted that the accused were justifiably allowed bail by Additional Chief Judicial Magistrate, Jalandhar in view of the provisions of section 167(2) of the Code of Criminal Procedure, as during investigation it transpired that Raj Kaur had not been set ablaze by the accused, rather she had set herself ablaze on the alleged abetment of the accused. It was submitted that the police was therefore, justified in challaning the accused under Sections 306/323/34 Indian Penal Code. It was submitted that the police was not bound to accept the ipse-dixit of Raj Kaur. Duty of the police was to scrutinize what Raj Kaur had stated and test its truth in the light of the other evidence that surfaced before them during investigation. It was submitted that if the police came to the conclusion that no offence falling within the mischief of Section 302 Indian Penal Code was made out and at best an offence punishable under Section 306 Indian Penal Code was made out, Additional Chief Judicial Magistrate, Jalandhar was bound to release them on bail in view of the provisions of section 167(2) of the Code of Criminal Procedure when on 27.12.99, i.e. when the challan was presented, their arrest was more than 60 days old. 8. Learned counsel for the petitioner submitted that the police could have at best challaned the accused alternatively under Section 306 Indian Penal Code. Police should not have disbelieved the dying declaration. 8. Learned counsel for the petitioner submitted that the police could have at best challaned the accused alternatively under Section 306 Indian Penal Code. Police should not have disbelieved the dying declaration. It was also submitted that on 6.1.2001 i.e. when the accused moved application for bail under section 167(2) of the Code of Criminal Procedure challan had already been put up. It was submitted that the challan was put up on 27.12.1989. No application under section 167(2) of the Code of Criminal Procedure was maintainable after the challan had been put up. It was submitted that the right granted under section 167(2) of the Code of Criminal Procedure was not an indefeasible right that it could not be taken away. 9. In this case challan was presented on 27.12.99. On 27.12.99, arrest of each of the accused was more than 60 days old. Accused, however, did not avail the right give to them under Section 167(2) of the Code of Criminal Procedure before the challan was put up. They sought to avail this right on 6.1.2000 by moving an application invoking the jurisdiction of the Magistrate to allow them bail under section 167(2) of the Code of Criminal Procedure. It was submitted that on 6.1.2000, their right to be released on bail in view of the provisions of section 167(2) of the Code of Criminal Procedure was not in subsistence. It ceased to subsist the moment the challan was put up. 10. In Uday Mohanlal Acharya v. State of Maharashtra, 2001(2) Recent Criminal Reports 452, the Honble Supreme Court held that accused gets an indefeasible right to get bail if he makes a bail application under section 167(2) of the code of Criminal Procedure before the challan is put up. Subsequent filing of challan during pendency of the bail application will not extinguish indefeasible right of the accused to get bail." In my opinion, the right of the accused to invoke the provisions of section 167(2) of the Code of Criminal Procedure was not in subsistence on 6.1.2000 when challan had already been filed on 27.12.99. 11. In this case, the Magistrate should have acted against the grant of bail acting on the saying "Discretion is the better part of velour". He should have refused bail under Section 167(2) of the Code of Criminal Procedure saying that prima facie there was offence of murder that was disclosed. 11. In this case, the Magistrate should have acted against the grant of bail acting on the saying "Discretion is the better part of velour". He should have refused bail under Section 167(2) of the Code of Criminal Procedure saying that prima facie there was offence of murder that was disclosed. He should not have gone by the label which the police had attached to the report under Section 173 Criminal Procedure Code 12. Learned counsel for the respondents submitted that there is no reason to cancel bail allowed to the respondents accused as Additional Sessions Judge has also charged them under section 306/323/34 Indian Penal Code. I need not dwell on this aspect of the matter as there is an application pending before Additional sessions Judge, Jalandhar whereby amendment of the charge has been claimed. It was submitted that the police was whole-hog with the accused. Public Prosecutor made an application under section 321 Criminal Procedure Code seeking withdrawal from the prosecution of the accused saying that the dispute between the parties had been amicably settled and if the trial continued, there was every possibility of effect on relations between the parties. Additional sessions Judge, Jalandhar refused permission to the Public Prosecutor for withdrawal from the prosecution of the accused. 12A. It was submitted by the learned counsel for the respondents-accused that there is no reason to cancel bail allowed to the accused. It was submitted that bail once allowed can be cancelled only on certain specified grounds. It was submitted that grant or refusal of bail in the initial stages is governed by different considerations while cancellation of bail already allowed is governed by different considerations. In support of this submissions, he drew my attention to Dolat Ram and Ors. v. State of Haryana, 1995(1) SCC 349 where it was held that rejection of bail in a non- bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. Very cogent and over whelming circumstances are necessary for an order directing the cancellation of the bail already granted. Generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. Generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. These instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the trial Court has to be corrected." 13. In this case, however, the principles which are applicable for cancellation of bail are not attracted because here bail was allowed not on merits but in view of the provisions of section 167(2) of the Code of Criminal Procedure. Magistrate invoked the provisions of section 167(2) of the Code of Criminal Procedure when their invocation was not warranted in view of the material attached to the report under Section 173 Criminal Procedure Code which disclosed offence falling within the mischief of section 302 Indian Penal Code as made out against the accused. 14. In view of what has been said above, this Crl.Misc. application is allowed. Bail allowed to the accused by Additional Chief Judicial Magistrate, Jalandhar vide order dated 15.1.2000 in view of the provisions of section 167(2) of the Code of Criminal Procedure is cancelled/withdrawn. Non bailable warrants of arrest shall be issued against the accused and they shall be arrested. If they apply for bail before the learned trial court, that shall be considered on merit. Application allowed.