Fakrudin vs Abdul Rahim and Others

Mahendra Bhushan Sharma, J.—This is an application u/s 439(2) of the Code of Criminal Procedure, seeking cancellation of the bail granted to the accused non-petitioners by the learned Sessions Judge, Kota under his various orders passed under Sections 439 & 438 of the Code of Criminal Procedure. The learned advocate for the petitioner has only pressed this application so far as the grant of bail to two accused non-petitioners by the Sessions Judge, Kota u/s 438 of the Code of Criminal Procedure under his order dated 1st July, 1985. I will therefore, confine myself to the order of the Sessions Judge and this application is therefore, confined for cancellation of pre-arrest bail to the accused non-petitioner Abdul Rahim.

The relevant facts are that the Sub-Inspector recorded the Parcha Bayan of the injured Rafiq aged 18 years. In the said statement, Shri Rafiq stated that on 11th June, 1985 at about 7 p.m. he was returning from the Maszid after offering prayer and the accused non-petioner Abdul Rahim came there. The accused Abdul Rahim was armed with sword, gave a blow on the head of the Fazul Rahman and injured him. A case was registered and investigation was started.

The injuries of Hafiz Fazul Rahman were examined and the Doctor found that there were as many as two injuries, including one incised wound on middle of the scalp. The doctor clarified that the injuries are simple caused by sharp weapon. On X-ray examination it was found that there was fracture of skull and no callous was seen. This X-ray report is dated 12-6-1985. An application was filed before the learned Sessions Judge, Kota (O.P. Jain). The learned Sessions Judge, under his order dated 1st July and 10th July, 1985 observed that the injury on the head of Fazul Rahman which is said to have been caused by Abdul Rahman accused was simple and therefore, granted pre-arrest bail. The application for cancellation of bail was filed before him u/s 439(2) of the Code of Criminal Procedure and the learned Sessions Judge on 12-8-1985 dismissed the said application. The learned Sessions Judge in his order dated 12-8-1985 has observed that the death of Fazul Rehman was not the direct result of the injuries.

It is neither proper nor necessary to say at this stage as to whether Fazul Rahman died as result of the injuries or not as this can only be decided after recording the evidence by the trial court. The only question is that even assuming that Section 302 [PC was added later on when Fazul Rahman died in a case of present nature even u/s 397 IPC when there was an injury by sword on the head and that too was grievous, the learned Sessions Judge should have exercised his discretion in releasing in accused Abdul Rahman on anticipatory bail ? It may be stated here that the learned Sessions Judge did not care to go through X-Ray report from which it is apparrent that the injury on the head was grievous being a fracture of the skull. X-Ray report is dated 12th June 1985 and the learned Sessions Judge allowed pre-arrest bail on 1st July, 1985 i.e. after the X-Ray report.

While granting the pre-arrest bail the learned Sessions Judge did not take into consideration, and I may say so departed from the principles which should be taken into consideration in granting pre-arrest bail as laid down in Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, . The Constitution Bench of the Supreme Court of India clearly laid down that "the distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and, therefore, means release from the custody of the police, the later is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest. It was further observed that there are different considerations while examining the application for anticipatory bail and an application for bail after arrest in the course of investigation".

In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humilate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid .. down as an inexorable rule that anticipatory bail cannot be granted " unless the proposed accusation appears to be actuated by malafides; and equally, that anticipatory bail must be granted if there is no fear the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges a reasonable possibility of the applicant''s presence not being secured at the trial, a reasonable possibility of the applicant''s presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the State" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.

In my opinion, looking to the nature of the allegations against the accused that he had caused an injury with sword on the head, a vital part of the body of Fazul Rehman and the injury was grievous, anticipatory bail should not have been allowed.

7, As already stated earlier considerations for grant of pre-arrest bail are different from consideration in granting bail after arrest. Even u/s 437(1) of the Code of Criminal Procedure, a person shall not be released if there appears reasonable ground for believing that he has been guilty of offence punishable for death or imprisonment for life. This Court in Jag Ram v. Gamandi and Ors. 1980 RCC 364 to which I was a party, held that the jurisdiction of the Sessions Judge as well as of this court u/s 439 of the Code of Criminal Procedure is unfettered, but while exercising the same principles u/s 437 of the Code of Criminal Procedure have to be kept in view and unless the court prima facie feels that there are reasonable grounds for believing that the accused is not guilty of an offence punishable-with death or imprisonment for life, discretion u/s 438 should not be exercised. It can, therefore, be said that in a case of present nature where the accused is said to have inflicted a sword blow on the head of Fazul Rehman and injury was found grievous on X-Ray, the exercise of the dicretion by the learned Sessions Judge u/s 438 of the Code of Criminal Procedure was not proper. A case for cancellation of bail granted to Abdul Rehman u/s 438 is duffly made out.

The learned counsel for the accused petitioner submits that the accused is a Government servant and he is on bail for the last about 7 months and has not misused bail. He, therefore, contends that this Court should release the accused u/s 439 of the Code of Criminal Procedure.

In the result, I cancel the bail granted by the Sessions Judge u/s 438 Cr.PC to the accused petitioner Abdul Rahim, but in view of the above discussion, and the fact that the accused is a Government Servant and has not misused bail, I allow bail to accused-petitioner Abdul Rahim u/s 439 Cr.PC and direct that he shall be released on bail provided he furnishes a personal bond in the sum of Rs. 5000/- With one surety in the like amount to the satisfaction of the learned Sessions Judge, Kota for his appearance in his court or any other court as and when called upon to do so.