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2004 DIGILAW 1299 (PNJ)

Siri Ram v. Central Bureau Of Investigation

2004-11-30

SURYA KANT

body2004
Judgment Surya Kant, J. 1. The prayer in this petition under Section 439 of the Code of Criminal Procedure is for the grant of regular bail to the petitioner in the case registered by the Central Bureau of Investigation (CBI) bearing No. RC6(S)/2002 S.I.C.I. dated 8.3.2002 under Sections 218, 323, 342, 205, 306 IPC, P.S. SIC-I, New Delhi. 2. On November 16, 2000, one Ashok Kumar Aggarwal was found in a naked, injured and unconscious condition on Nand Rampur Bans Road, Dharuhera, District Rewari. He was taken to Civil Hospital, Rewari by the police of Dharuhera and FIR No. 277 under Section 307 IPC was registered on that very day. The said Ashok Kumar Aggarwal later on succumbed to the injuries and due to his death, the case was converted into one under Section 302 IPC. Smt. Sita Devi wife of the deceased Ashok Kumar Aggarwal was called by the local police to identify the dead body which she allegedly identified only by seeing the toe/foot but without seeing the face of the deceased. The manner in which the dead body was identified by Smt. Sita Devi is alleged to have raised some suspicion regarding the possibility of her involvement in the murder of her husband. 3. Siri Ram (petitioner No. 1) was the SHO of PS Dharuhera at the relevant time and was investigating the aforementioned case. It is alleged that he brought Smt. Sita Devi and her minor daughter Sarika, aged about 16 years, along with their tenant Giri Raj Prasad to the police station at about 10 A.M. on 19.11.2000. Sub-Inspector Lekh Ram (petitioner No. 2) was also posted in the aforementioned police station at that time. 4. Thereafter started a sad story which culminated into a horrifying end in the committal of custodial suicide by Smt. Sita Devi and her minor daughter Sarika. According to the prosecution, both the petitioners allowed Giri Raj Prasad (tenant) to go to his house in the evening of 19.11.2000 but Smt. Sita Devi and her minor daughter Sarika were detained illegally in the police station Dharuhera in the intervening night of 19/20.11.2000 though two lady constables, who were called from the Police Lines Rewari, were deputed on duty with Smt. Sita Devi and her minor daughter Sarika from the morning of 19.11.2000 itself. It is alleged that Smt. Sita Devi as well as Km. It is alleged that Smt. Sita Devi as well as Km. Sarika were physically tortured, humiliated and were threatened with dire consequences, especially both the petitioners are stated to have lifted the shirt of Km. Sarika while beating her and threatened her that her salwar shall also be lifted if she did not disclose the name of the person who killed her father. At about 3.30 P.M. on 20.11.2000, Km. Sarika was taken to her home for fetching her mothers clothes in the custody of lady constables Smt. Sushila Devi and Smt. Munia Devi and constable Sube Singh in a government vehicle and while returning from her house, Km. Sarika is stated to have brought sulphas tablets along with the clothes of her mother. Apprehending further beating and indecency, grief stricken Smt. Sita Devi and her minor daughter Km. Sarika both consumed sulphas tablets in the police station Dharuhera to put an end to their lives by committing suicide. While Smt. Sita Devi appears to have died instantly (she had allegedly consumed two tablets), Km. Sarika was taken to the Hospital where she made a statement before the Duty Magistrate (which has been taken as the dying declaration) in which she is alleged to have specifically named both the petitioners for giving beatings and/or other mal- treatments. Unfortunately, Km. Sarika also died after some time on that very day. 5. FIR No. 281 dated 20.11.2000 was registered at P.S. Dharuhera in relation to the afore-mentioned incident under Sections 342, 302 read with Section 34 IPC against both the petitioners along with some more police officials. The investigation of the afore-mentioned FIR was transferred to the CBI by this Court vide an order dated February 8, 2002 passed in Crl. Misc. No. 33036-M of 2001 (Neeru Aggarwal and others v. State of Haryana and others). 6. After the investigation, CBI submitted a charge sheet on May 28, 2003 under Sections 342, 305, 306, 323 read with Section 34 IPC which led to the summoning of the petitioners by the learned Special Judicial Magistrate First Class for July 31, 2003. The petitioners applied for the grant of pre-arrest bail which was, however, declined by the learned Additional Sessions Judge, Ambala on October 7, 2003 and thereafter they approached this Court in Crl. Misc. The petitioners applied for the grant of pre-arrest bail which was, however, declined by the learned Additional Sessions Judge, Ambala on October 7, 2003 and thereafter they approached this Court in Crl. Misc. No. 48307-M of 2003 wherein vide order dated May 19, 2004, they were relegated to seek the remedy of regular bail under Section 439 Cr.P.C. The Special Judge, CBI, however, has declined them the grant of regular bail, hence this petition. 7. At this stage, it may also be mentioned that during the period when FIR No. 280 dated 20.11.2000 was being investigated by the Haryana Police, the petitioners were arrested on November 22, 2000 but after the offence having been converted from Section 302 IPC to Section 306 IPC, on February 5, 2001, they were discharged also on the basis of the investigation report. The afore-mentioned order of the Chief Judicial Magistrate, Rewari, however, was set aside suo moto by the Additional Sessions Judge, Rewari vide his order dated May 31, 2003 which led the petitioners to apply for bail and which was granted to them by the learned Additional Sessions Judge, Rewari on June 7, 2001. The petitioners, however, applied for second time - firstly, for the grant of pre-arrest bail and thereafter for regular bail for the reason that CBI added Section 305 IPC as well. It is also not disputed that the petitioners have not yet surrendered before the Court concerned and thus, even when there is no interim protection against their arrest, they have not been taken in custody. 8. It is also not disputed that the petitioners have not yet surrendered before the Court concerned and thus, even when there is no interim protection against their arrest, they have not been taken in custody. 8. Smt. Kiran Bala Jain, learned counsel appearing for the petitioners contended that in view of the fact that (i) no offence under Section 305 IPC is prima facie made out against the petitioners; (ii) they are already on regular bail for the offence punishable under Section 306 IPC before the investigation was entrusted to the CBI; (iii) the petitioners have already remained in custody for 77 days; (iv) no purpose will be served by sending the petitioners in judicial custody; (v) the investigation is already complete and charge-sheet has been filed and thus, there can be no apprehension of their tampering with the investigation; (vi) the necessity for custodial interrogation of the petitioners did not arise even before submission of the charge-sheet; (vii) there are more than 70 witnesses who are likely to be examined by the prosecution, thus, a reasonably long period is likely to be taken in conclusion of the trial; it is a fit case for extending the concession of regular bail in favour of the petitioners. 9. On the other hand, Shri Rajan Gupta, learned Special Public Prosecutor for the CBI has argued that (i) prima facie case under Section 305 IPC has been made out against the petitioners as deceased Km. Sarika was a minor and if the charges are proved, one can even be punished with death sentence; (ii) the petitioners cannot rely upon the order granting them regular bail under Section 306 IPC passed before the investigation was transferred to the CBI; (iii) the previous FIR registered by the Haryana Police has been superseded by the FIR registered by the CBI; (iv) it is a case of custodial death; (v) the nature of allegations levelled against the petitioners in relation to the physical torture and/or their behaviour towards minor Km. Sarika does not justify the grant of any discretionary relief like bail; (vi) the petitioners despite being responsible officers, have been found prima facie guilty of illegal detention in violation of the directions/guidelines laid down by the Honble Supreme court; (vii) gravity and nature of offence should be kept in view by this court while considering the request for grant of bail; (viii) in the event of enlargement of the petitioners on bail, they are likely to misuse their officials position to brow-beat, tamper with and/or to threaten the prosecution witnesses, many of whom are small time persons of the vicinity where the crime was allegedly committed, therefore, bail should not be granted at this stage. 10. The guidelines and the relevant considerations required to be noticed while exercising the discretion of grant of bail have been illustrated by their Lordships of the Supreme Court in Ram Govind Upadhyay v. Sudarshan Singh, 2002(2) RCR(Crl.) 250 (SC) : 2002(3) SCC 598 with the following observations :- "3. Grant of bail though being a discretionary order - but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the Court and facts, however, do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail - more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter." 11. The nature of the offence is one of the basic considerations for the grant of bail - more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter." 11. The Apex Court, in the case aforementioned, after observing that the relevant considerations can be explained only illustratively and not exhaustively, referred to some of the following considerations to be kept in view :- (a) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. (c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 12. In Mansab Ali v. Irsan and another, 2003(1) RCR(Crl.) 228 (SC) : 2003(1) SCC 632, their Lordships of the Supreme Court while not appreciating the grant of bail by a laconic order, observed as follows :- "4. The provisions of the Criminal Procedure Code confer discretionary jurisdiction on criminal Courts to grant bail to the accused pending trials or in appeals against convictions. Since the jurisdiction is discretionary it is required to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In granting or refusing the bail, the Courts are required to indicate, may be very briefly, the reasons for grant or refusal of bail. The jurisdiction is not to be exercised in a casual and cavalier fashion as has been done by the learned Judge in this case." 13. In granting or refusing the bail, the Courts are required to indicate, may be very briefly, the reasons for grant or refusal of bail. The jurisdiction is not to be exercised in a casual and cavalier fashion as has been done by the learned Judge in this case." 13. In State of Maharashtra v. Ritesh, 2001(2) RCR(Crl.) 214 (SC) : 2001(4) SCC 224, the Apex Court held that while deciding an application under Section 439 Cr.P.C. for the grant of bail, the High Court should not go into the merits of the case and decide, without affording an opportunity to prosecution, about non-complicity of the accused in the crime. In Prahlad Singh Bhatti v. NCT, Delhi, 2001(2) RCR(Crl.) 377 (SC) : 2001(4) SCC 280 the Supreme Court held that the jurisdiction to grant bail is to be exercised on the basis of well settled principles by keeping in mind the nature of accusations, nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, larger interests of the public or State and other similar considerations. 14. Without going into the merits of this case and/or expressing views in relation to the rival submissions made by the learned counsel for the parties, referred to above, so that there is no direct or indirect tinkering with the merits of the case, however, keeping in view the factors like :- (i) the nature and gravity of offence and the circumstances in which the same is alleged to have been committed; (ii) the official position of the petitioners viz. the possibility of their tampering with and/or influencing the prosecution witness; and (iii) their case in relation to the grant of concession of bail being distinguishable from that of the two lady constables to whom this Court granted the concession of anticipatory bail vide order dated October 1, 2004, I am of the view that at this stage, namely, until the statements of some of the non-official but vital prosecution witnesses are recorded, the petitioners cannot be granted the concession of bail. 15 However, the prosecution can also not be permitted to prolong the trial so as to subject the petitioners with sentence even when they are yet to be found guilty for commission of an offence. The prosecution is, therefore, directed to produce all those prosecution witnesses which it genuinely feels are vulnerable to any influence by the petitioners on or before January 31, 2005 with liberty to the petitioners to apply for bail afresh before the learned Special Judge (CBI). 16. Consequently, the application for the grant of regular bail at this stage is dismissed with liberty to move the same at the appropriate time, keeping in view the observations made above.