Akko widow of Mohan Singh vs Sudesh Kumar, Ex.S.H.O.

A.P. Chowdhri. J.

Facts necessary for the disposal of this application under section 439(2) of the Code of Criminal Procedure are that Smt. Akko, filed a complaint in the Court of the Judicial Magistrate Ist class under sections 302 and 120B, Indian Penal Code, alleging that on March 18, 1985, at 7 p.m. HC Rajpal Singh and Constable Bahadur Singh took away her son Joga Singh to Police Station Dhanaula in connection with a theft case. On March 19, 1985, at 4 a.m. SHO Sudesh Kumar along with the aforesaid police officials came to the complainant''s village Badbar and took away Lakha Singh to the Police Station. Shangara Singh and Sher Singh of the village were already present in the police station. Later, Data Singh, Gurnam Singh and Mukhtiar Singh of the village were taken to the Police Station through some police officials In the Police Station SHO Sudesh Kumar gave Rs. 1,000/ to para Singh etc. for effecting a compromise with the heirs of Joga Singh, who had died. He also obtained thumb impressions of Dara Singh etc. on some blank papers. The dead body of Joga Singh was first taken to Civil Hospital, Dhanaula, and from there it was brought to Civil Hospital, Barnala, where Dr. Narotam Singh conducted postmortem examination. The dead body was then brought by police jeep to village Badbar. It was tried to be cremated, Smt. Akko got scent of it. She raised alarm, which attracted Gurcharan Singh and Joginder Singh etc. Ultimately the &ad body was allegedly cremated by the SHO and two Police Officials HC Rajpal Singh and Constable Bahadur Singh.

The unfortunate mother ran from pillar to post. Ultimately, under orders of the District Magistrate, the SDM held an enquiry into the circumstances leading to the death of Joga Singh. He recommended registration of a case against the police officials. Eventually, however, no case was registered and that is how the aforesaid complaint was filed in the court. After recording preliminary evidence the accused were summoned for offences under sections 302/120B, Indian Penal Code, by order dated June 3, 1988. The accused preferred a revision against the summoning order which was dismissed by learned Additional Sessions Judge by order dated January 30, 1989. The accused have since been committed to the Court or Session, they have been charged and trial is under way.

Application for anticipatory bail was made. It was declined by the learned Additional Sessions, Judge, Barnala, vide order dated July 28, 1988, Annexure P. 2, with the observation that the offence alleged was a serious one and no ground for anticipatory bail was made out. After rejection of the revision by the learned Additional Sessions Judge against the summoning order, a fresh application for anticipatory bail was made, which was allowed by the same learned Additional Sessions Judge by order dated February 23, 1989, Annexure P. 3. It was noted in the order that the Public Prosecutor did not oppose the application. It was also stated that the applicants were public servants, that there was no direct evidence regarding commission of the offence, that the case was based on extra judicial confession, which was a weak type of evidence, and that even the District Magistrate had not recommended registration of a case against the accused. The present petition is directed against the said order of learned Additional Sessions Judge granting anticipatory bail to the accused.

A reply has been filed by way of affidavit of Bahadur Singh Constable, arrayed as respondent No. 3. It is stated therein that at the time of the second application, the accused surrendered in the Court and in a consideration of the material collected against the accused, the learned Additional Sessions Judge granted them bail. He further stated that the concession of bail had not been abused at any stage that the material witnesses were related to the deceased and there was no question of tampering with their evidence. It was also pointed out that SI Sudesh Kumar accused had since been transfered to another range i.e. Jalandhar, and that HC Rajpal Singh been transferred had been transferred from] the police station concerned. It was expressly denied that the accused had threatened any witness from giving evidence.

Learned counsel for the petitioner referred to relevant material in an attempt to show that the prosecution had made out a prima facie case under sections 302/120B, Indian Penal Code, against the accused. He also argued that the accused being police officials wielded influence and their very station in life would deter witnesses from coming forward and deposing against them. Lastly, he argued that the rule was against grant of bail in a murder case. The rule has to be applied with greater rigour in so far as anticipatory bail is concerned. Reliance was placed on Pokhar Ram v. State of Rajasthan, 1985(2) Recent Criminal Reports 122 : AIR 1985 SC 969 .

With regard to prima facie case, the material referred to by learned counsel may be conveniently placed in the following categories :

(i) Report of the S.D.M.

(if) Last seen alive with HC Rajpal Singh and Constable Bahadur Singh;

(iii) Dead body having been seen with the three accused;

(iv) Un natural death, as made out by the postmortem examination (the death being on account of poison) ; and

(v) Extrajudicial confession.

Each one of these pieces of material was dealt with by learned counsel for the accused and after hearing learned counsel for both the sides, I do not propose to discuss the relative merits of the contentions because doing so at this stage is likely to cause prejudice to a fair and impartial trial of the case. In the view, on the basis of the limited material referred to before me, it is very arguable whether the facts and circumstances alleged by the prosecution add up to a charge of murder `or some'' other offence, if at all. I am equally unimpressed by the allegation that the accused threatened any witness. The witnesses did appear before the S.D.M. in the course of the enquiry. They appeared before the Judicial Magistrate at the stage of preliminary evidence & they have been appearing before the learned Addl. Sessions Judge in connection with the trial. What is more is that SI Sudesh Kumar stands transferred out of Patiala Range. HC Rajpal Singh is also not in the police station concerned any more. What is significant is that no case has been made out for interference in the discretion duly exercised by the learned Additional Sessions Judge in granting bail to the accused persons. The authority in Pokhar Ram''s case is clearly distinguishable on facts. That case related to case or murder by a firearm in which the accused had been named in the First Information Report. The order of the learned Sessions Judge granting anticipatory bail did not disclose the main reasons for granting the bail, and in any case the facts did not bring the case within the purview of the rule laid down in Gurbax Singh Sibia v. State of Punjab, AIR 1980 SC 1632.

For the aforesaid reasons, I find no merit in this application It is accordingly rejected.