Harvinder Singh vs Puran Singh, Assistant Sub Inspector, Police Station, Sadar Malout, Distt.Faridkot

A.S. Nehra, J.

Harvinder Singh petitioner son of Swaran Singh deceased has filed this application under Section 439 (2) of the Code of Criminal Procedure for cancelling the bail of the respondent in FIR No. 85 dated 1.7.1992 under Sections 304/323, Indian Penal Code, registered on the petitioner''s statement which reads as under :

"I belong to Karampatti and cultivate land. My father Swaran Singh''s first cousin Karnail Singh son of Kishan Singh had a case with Jaswant Singh and others Gurbanchan Singh son of Bishan Singh, who is the brother of the wife of Jaswant Singh, had given an application against Bhupinder Singh son of Swaran Singh, Gurvinder Singh son of Naranjan Singh and Harvinder Singh son of Darshan Singh in Police Post, Panniwala Fatta, that they had teased their daughters. On the basis of the aforesaid false application, ASI Puran Singh reached our village in the evening on 28.6.1992. He was then accompanied by police officials. My father Swaran Singh and Naranjan Singh were forcibly put in the Canter. When Jagjit Singh, ExSarpanch, protested against forcible throwing of Swaran Singh and Naranjan Singh in the Canter and requested the police officials not to take them and that he would produce them in the police station on the next day. ASI Puran Singh took exception to the same and put Jagjit Singh also in the Canter and reached Police Post, Panniwala Fatta, with the Canter. On 28.6.1992 at 10.11 p.m. ASI Puran Singh took out my father from Kath. ASI Puran Singh tied the arms of my father and started giving dang thrusts. He also gave kicks with Boots. We had seen all this dreadly sight fro the side cabin, but being helpless could not do anything. When Naranjan Singh and Jagjit Singh ExSarpanch requested ASI Puran Singh not to give injuries, ASI Puran Singh threatened that their turn would be next. He continued giving merciless beating to Swaran Singh due to which his condition worsened and he became unconscious. On 29.6.1992 at about 10 a.m., my sister''s husband''s elder brother Darshan Singh reached the police spot and assured ASI Puran Singh that he would produce the persons and that he should release them. Thus, Darshan Singh got us released. My father Swaran Singh in an unconscious condition was brought from Police Post, Panniwala Fatta to Civil Hospital, Malout. Dashan Singh and Jagjit Singh Exsarpanch also came to the hospital. After rendering first aid, the doctor of Hospital, Malout, keeping in view the precarious condition of my father referred him to Guru Gobind Singh Medical College, Faridkot. We got him admitted in the hospital at Faridkot at 10 p.m. on 29.6.1992. His condition became more worse. My father succumbed to the injuries on 30.6.1992 at 2.00 p.m. Action may be taken on the basis of my statement against ASI Puran Singh, Incharge Police Post, Panniwala Fatta."

The respondent, while posted at Police Post, Panniwal Fatta, took Swaran Singh, father of the petitioner, to the Police Post and gave injuries to him while he was in custody. Dr. Ashok Chanana found the following injuries on the person of Swaran Singh :

A blluse black to brownish bruise 3.5 cms. x 3.2 cms is present on the front of the right side of the neck, 2 cms horizontally away from the Adam''s apple. On dissection, underlying soft tissue and muscular tissues are stained with clotted blood.

A bluish black to brown bruise 3 cms. x 2.5 cms. is present on the right cheek of the face. On dissection, underlying soft tissue and muscular tissue are stained with clotted blood.

An abrasion 1.5 cms. x 10 cms with reddishbrown scab is present in the centre of the forehead, 2.5 cms. above the nasion.

An abrasion 1.8 cms x 0.7 cm. with reddishbrown scab is present over the dorsum of the nose at its root.

A blueback to brown bruise 6 cms x 1.5 cms. on the left shoulder region.

A blueback brown bruise 5 cms. x 1.2 cms. on the right shoulder region.

On dissection, under injuries Nos. 5 and 6 underlying soft tissues were stained with clotted blood.

A bluish black contusion 4 cms. x 1.8 cms. on the back of the abdomen over the midline in its centre. On dissection, underlying soft tissues stained with clotted blood.

A bluish black to brownish contusion 3 cms x 1.5 cms on the right buttock in its centre.

On dissection, under injury No. 8 underlying tissues were found stained with clotted blood.

The cranial cavity contained subdural haematoma of reddishbrown to blue Black colour on the frontal side of the brain which is extending to the base of the brain.

According to Dr. Ashok Chanana, Assistant Professor, Guru Gobind Singh Medical College, Faridkot, the death was as a result of subdural hamematoma which was sufficient to cause death in the ordinary course of nature.

Mr. M.L. Merchea, Advocate, learned counsel for the petitioner, has submitted that normally a case under Section 302 of the Indian Penal Code should have been registered but since the respondent is an Assistant SubInspector, therefore, the police has knowingly converted the case against the respondent from Section 302 to Section 304, Indian Penal Code. The learned counsel for the petitioner has further contended that the learned Additional Sessions Judge, Faridkot, has erred in law in granting anticipatory bail to the respondent and the learned Additional Sessions Judge has taken extraneous matter into consideration while granting the anticipatory bail to the petitioner. In support of his argument, he has relied upon Pokar Ram v. State of Rajasthan and others, AIR 1985 Supreme Court 969; Kiran Devi v. State of Rajasthan and another, 1988 Supreme Court Cases (Crl.) 106; and Samunder Singh v. State of Rajasthan and others, AIR 1987 Supreme Court 737. It has been held by the Supreme Court in Pokar Ram''s case (supra) that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress.

The learned counsel for the petitioner has further submitted that the Investigating Officer did not even attempt to arrest the respondent though the accusation was under Section 304, Indian Penal Code, punishable with imprisonment for life. He has further submitted that if such an order is allowed to stand, then the faith of the public in the administration of justice is likely to be considerably shaken.

Mr. R.B.S. Chahal, Advocate, learned counsel for the respondent, has argued that as per the medicolegal report dated 29.6.1992 prepared at 10.00 p.m., the duration of the injuries, which were all blunt in kind, was 72 hours; therefore, it would mean that the injuries had been caused at least three days prior to 29.6.1992, i.e. on 26.6.1992 of in the early hours of 27.6.1982. The learned counsel for the respondent has further contended that, as per the note recorded by the doctor at Malout on the bedhead ticket, Swaran Singh had high fever for the last two days and, as per Swaran Singh, he was inflicted injuries a day before yesterday. According to the learned counsel for the respondent as per the statement of Swaran Singh, made before the doctor, Swaran Singh had received injuries on 27.6.1992. The learned counsel for the respondent further contended that the cause of death, as per the postmortem report, was compression of brain as a result of subdural haematoma, which was sufficient in the ordinary course of nature to cause death. He has further submitted the subdural haematoma could be suffered by high blood pressure of high fever and is not necessarily due to infliction of injuries. The learned counsel for the respondent has adopted all the reasons mentioned in the order dated 6.8.1992 of the Additional Sessions Judge, which granting anticipatory bail to the respondent.

Mr. N.S. Boparai, Assistant Advocate General, Punjab, has submitted that the custody of the respondent is not required by the investigating agency, because nothing has to be recovered from the respondent. He has further contended that this is the practice of this Court normally the bail granted by the trial Judge is not cancelled.

Unusual though it may appear to be, under a compelling necessity in the interest of justice, I would depart from the ordinary response of this Court to the matters involving bail. Ordinarily, this Court is loath to interfere with the orders granting bail but it cannot be unsurmountable obstacle in the way of rectifying an order which tends to disclose miscarriage of justice.

The relevant considerations governing the Court''s decision in granting anticipatory bail under Section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher Court and bail is sought during the pendency of the appeal. These situations in which the question of granting or refusing to grant bail would arise, materially and substantially differ from each other and the relevant considerations on which the Courts would exercise its discretion, one way or the other, are substantially different from each other. This is necessary to be stated, because the learned Additional Sessions Judge unfortunately fell into an error in mixing up all the considerations as if all the three become relevant in the present situation.

The accusation against the respondent is that he committed an offence punishable under Section 304, Indian Penal Code. When a person is accused of an offence of murder, the Court has to be careful and circumspect in entertaining an application for anticipatory bail. The relevant considerations are conspicuous by silence in the order of the learned Additional Sessions Judge. Could it be said in this case that the accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive ? Could it be said that the object was to injure and humiliate the respondent by having him arrested ? What prompted the learned Additional Session Judge to grant anticipatory bail left me guessing and I am none the wiser by the discussion in the order of the learned Additional Sessions Judge. Some very compelling circumstances must be made out for granting anticipatory bail to a person accused of committing murder, that too when the investigation is in progress. If such an order granting anticipatory bail is allowed to stand, then the faith of the public in the administration of justice is likely to be considerably shaken. Therefore, I have no option but to cancel the bail granted to the respondent by the learned Additional Sessions Judge, Faridkot on 6.8.1992.

This application is allowed and the bail granted to the respondent is hereby cancelled. Nonbailable warrants of arrest be issued and the respondent be sent to judicial lockup to stand trial.

Application allowed.