Kartar Singh Tomar vs State of Haryana

V.S. Aggarwal, J.

Kartar Singh Tomar petitioner had joined the police department. In 1987 he was working as Superintendent of Police and has since retired on 30.11.1995.

In his application seeking anticipatory bail, his contention is that Meham Assembly Constituency seat fell vacant following the resignation of Shri Devi Lal who was to join the Central Government as Deputy Prime Minister in November, 1989. Shri Om Prakash Chautala succeeded Shri Devi Lal as the Chief Minister. Shri Chautala was one of the candidates for byeelections in Meham. The Central Election Commission ordered repoll in some of the booths. Re polling was conducted on 28.2.1990. On that day there was large scale disturbance and violence. The election was countermanded. A new notification for holding elections on 26.5.1990 was issued. The main contest was between Shri Om Parkash Chautala and Shri Anand Singh Dangi. There were some other candidates in the fray. On 17.5.1990 the dead body of one Amir Singh an independent candidate was recovered within the area of police station Bhiwani Khera. Shri Anand Singh Dangi was denounced as principal accused in the first information report that was registered with respect to offences punishable under Sections 302/364/120B and 34 Indian Penal Code.

On 17.5.1990 it is alleged that Shri Anand Singh Dangi was present in village Madina. A police party from District Bhiwani wanted to arrest him. There was a violent incident in which three persons died and many others injured.

The FIR was registered with respect to offences punishable under Sections 302/307/120B IPC. It recites that on 17.5.1990 at about 6.00 p.m. many officers and officials of the Haryana Police including the Deputy Inspector General of Police, the petitioner and others had come to the said village. The house of Shri Anand Singh Dangi was located in the street. The Chief Minister of the State was present. He left after talking to the petitioner. After the Chief Minister had left, the police force came to the street where the house of Shri Anand Singh Dangi was situated. The petitioner had enquired in a loud voice about the whereabouts of Shri Dangi. Shri Dangi came from the upper storey room to the verandah and the petitioner, Inspector Om Prakash and SHO Prem Singh opened fire at him. Shri Dangi retreated to the room and was not hurt. When the police party attempted to go upstairs, the wife of Shri Dangi and his servant intervened. The Deputy Inspector General of Police fired a shot on the servant who died. The wife of Shri Dangi and other ladies did not allow the police to go upstairs. The other persons had collected there and raised slogans against the petitioner. Deputy Inspector General of Police ordered to teach them a lesson. The police opened the fire indiscriminately. The constables generally fired in the air but the petitioner, Inspector Om Prakash and DSP Sukhdev Raj fired at the crowd. One girl Ishwanti was sitting in the window of the neighbouring house. She was killed in the firing. Large number of persons were injured.

Earlier the petitioner had filed an application seeking anticipatory bail. On 9.1.1991 it came up for hearing in this Court. The learned Additional Advocate General had made a statement that Commission of Enquiry is looking into the occurrence and at that stage, the arrest of the petitioner was not contemplated. A week''s notice was undertaken to be given to the petitioner. In face of this statement, the petition was disposed of having not been pressed.

The present petition has been filed afresh alleging that there is an apprehension of the petitioner being arrested. He seeks anticipatory bail.

The question as to under what circumstances powers under Section 438, of the Code of Criminal Procedure have to be exercised, came up for consideration before the Supreme Court in the case of Balchand Jain v. State of Madhya Pradesh, AIR 1977 SC 366. Though the question basically under consideration was as to if there was conflict between Rule 184 of the Defence and Internal Security of India Rules and Section 438 Code of Criminal Procedure, the Supreme Court still in paragraph 25 recorded as under :

"(3) that Section 438 of the Code is an extraordinary remedy and should be resorted to only in special cases. It would be desirable if the Court before passing an order under Section 438 of the Code issues notice to the prosecution to get a clear picture of the entire situation; and, "

It came up for consideration again in the case of Gurbaksh Singh Sibbia etc. v. State of Punjab, AIR 1980 SC 1632. One of the contentions to be considered was as to if anticipatory bail can be granted in serious offences or not. The Supreme Court held that powers under Section 438 Cr.P.C. are unrestricted, though it added that the Court can refuse the request if there is material justifying the said refusal. In paragraph 18 it was held :

"In the majority of cases falling under Section 438 that data will be lacking for forming the requisite belief. If at all the conditions mentioned in Section 437 are to be read into the provisions of Section 438 the transplantation shall have to be done without amputation. That is to say, on the reasoning of the High Court, Section 438 (1) shall have to be read as containing the clause that the applicant "shall not" be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life." In this process one shall (sic) Section 438(1) can be exercised if the High Court or the Court of Session "thinks fit" to do so. Section 437(1) does not confer the power to grant bail in the same wide terms. The expression "if it thinks fit", which occurs in Section 438(1) in relation to the power of the High Court or the Court of Session, is conspicuously absent in Section 437(1). We see no valid reason for rewriting Section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court and the Court of Session but, for the purpose of limiting it. Accordingly, we are unable to endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefor is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal."

The Supreme Court further concluded that if the allegations are made of being injured or humiliate a person, an order can well be passed and it observed :

"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 humiliate the applicant by having him arrested, a direction for 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."

Learned Additional Advocate General urged that the injuries were caused with fire arms and in such like cases when a case is being registered under Section 302 Indian Penal Code, request for anticipatory bail should not be considered. He relied upon the observations made by the Supreme Court in the case of Pokar Ram v. State of Rajasthan and others, AIR 1985 SC 969. The Supreme Court held that when a person is an accused of offence of murder by use of fire arm, the Court should be careful and circumspect in entertaining application for anticipatory bail. Status in life or otherwise are not relevant considerations. The Court further concluded that anticipatory bail to some extent intrudes in the sphere of investigation of crime. Therefore, the Court has to be circumspect in exercise of these powers. There is no controversy with the said principle. In serious offences such an order has to be passed after due care and caution. However, basically what prevailed with the Supreme Court in the case of Pokar Ram (supra) was that the investigation was still in progress. In the present case as would be noticed hereinafter the investigation basically is complete. The decision of Pokar Ram (supra), therefore, will not help the contention of the respondent.

Learned counsel for the petitioner had drawn the attention of the Court to the fact that the Ballistic Export Report (Annexure P8) indicates that the bullet pieces taken out from the body of Ishwanti were pieces of 9 mm Carbine bullet and that revolver had not been used. He urged to show in terms that the revolver of the petitioner was not used. The direction of the bullet on the person of Ishwanti indicated as alleged by the counsel to be from an upper side. It was further pointed out to the effect that the incident pertains to the year 1989. After six years, there is no ground now to arrest the petitioner particularly when investigation further is complete.

There was no controversy that investigation basically has been completed. The learned State counsel urged that report of the Commission of Enquiry was only received on 31.5.1994 and hence the delay. But he conceded that all statements have been recorded before the report of the Commission except that of Narinder. It is not known as to why even after the report of the Commission had been received, about two years back, the matter was kept in the cold storage. To add fuel to the fire is the fact that the petitioner was reinstated in November, 1994 and allowed to retire thereafter. It is somewhat strange that after lapse of such a long time when petitioner was reinstated and allowed to retire even when report of the Commission had been received, now the State intends to arrest the petitioner. These facts indeed cannot be ignored. In this regard the balance has to be struck with the individual''s right of liberty and the investigating right of the police. The facts indicated above, do not indicate that investigating right of the police in the peculiar facts are going to be affected. The other factors noted above also for purposes of the present order tilts the balance in favour of the petitioner.

For these reasons given above, it is directed that in the event of arrest the petitioner be enlarged on bail on his executing personal bond to a sum of Rs. 10,000/ with two sureties of like amount to the satisfaction of the Investigating Officer/OfficerinCharge of the Police Station. The petitioner shall join investigation as and when required. Nothing said herein should be taken as expression of opinion on the merits of the matter.