Mazahar Ali and Others vs The State

A.S. Anand, J.—The petitioners were chal-laned by the police of Police Station, Bakhshinagar, Jammu, and the challan was filed in the

court. Charges for offences Under Sections 304/34 & 218 R.P.C. have been drawn up against them. They have approached this Court seeking

bail during the pendency of the trial, since their prayer for being admitted to bail was rejected by the trial Court.

Shorn of details the prosecution allegations against the petitioners as emerging from the police report are that on 26-5-1981, petitioner No. 1

Maz-har Ali Shah, while posted as S. H. O. Police Station Bakhshinagar, Jammu, went to Janipora at about 2.30 P. M. where one Moti Ram

approached him and complained to him that one Inderjit a Harijan, was standing in the lane and was abusing him and threatening to beat him.

Petitioner Mazhar Ali Shah thereupon called Devi Chand constable petitioner No. 2 and directed him to catch hold of Inderjit and produce him.

On seeing the police coming towards him, Inderjit started running away. On seeing this Mazhar AH Shah, petitioner No. 1, fired a shot from his

service revolver, which hit a drum placed on the roof of a building in the close vicinity. Inderjit then scaled a wall and entered into the house of one

Ram Saran, from where he was apprehended by Mazhar Ali Shah and Devi Chand constable. He was brought to the market of Janipora and was

given beating by petitioners 1 & 2 with sticks. Inderjit had received injuries on his hands from the glass pieces which had been embeded in the wall

when he had scaled in his attempt to run away from the police. When he was brought to the market, he was bleeding from those injuries. He was

sent to the Police Station Bakhshinagar along with. Devi Chand petitioner to, 2 in an Auto Riksha. A case u/s 4/27 of the Indian Arms Act was

registered against Inderjit. After handing over InderjU to Moharrir Head Constable of Bakhshi-nagar Police Station Devi Chand petitioner No. 2

went back, Mazhar Ali Shah later came to the police station at 4-30 PM. He called Inderjit and started interrogating him. During the course of the

investigation, he himself and petitioner No- 3 also gave him beating. Inderjit was made to run on thorns and was constantly beaten. Surjit Singh A.

S. I. who was present at the police station advised Mazhar Ali Shah not to give such beating to Inderjit, as due to heat Inderjit might, die of the

beating but i the petitioners 1 and 3 continued with the beating despite the advise. Inderjit was then made to sit under a tree and was removed to

the office inside the police station where at about 7 P.M. he succumbed to the injuries and died.

It is further alleged that after the death of Inderjit, the lights of the police station were switched off and when some \ persons including a

Municipal Councillor approached the police to enquire about the whereabouts of Inderjit late in the evening, the accused petitioners denied that

Inderjit had been brought to the police station, even though he was lying dead at that time. Later the District Magistrate also reached the police

station and the dead body was found. No information about the death of Inderjit had been given to the authorities by the petitioner Mazhar Ali

Shah till the arrival of the District Magistrate. The Addl. District Magistrate, conducted the mquest into the death of Inderjit and submitted his

report to the District Magistrate with the finding ""that Inderjit had died on account of injuries inflicted on him while in police custody"". The

prosecution has' further alleged that the Toka, which was shown to have been recovered from the possession of Inderjit and on the basis of which

the case u/s 4/27 of the Arms Act had been registered against Inderjit deceased had in fact been taken from the house of Lalman Mahasha and

later on foisted on the deceased, Inderjit. That later on with a view t6 make the offence of Inderjit look graver another offence u/s 307, RPC was

added to the said case, thus, making it appear that Inderjit deceased was arrested in a case u/s 307 RPC and 4/27 Indian Arms Act. Apart from

this tampering with the record, it is also alleged by the prosecution that petitioner Mazhar Ali Shah fabricated the entries in the daily diary of the

police station to show his arrival at the police station at 18.05 hours though in fact he had reached the police station at 4.30 P. M, and had started

administering beating to Inderjit deceased.

Mr. Goni, learned Counsel for the petitioners has submitted that even if all the prosecution allegations are taken as correct on their face value,

the offence against the petitioners would fall u/s 330 RPC or 325 RPC and not u/s 304/34 RPC. learned Counsel relied upon some judgments to

show that where it was not known as to who caused the fatal injury in a particular case, the offence does not fall u/s 302 or 304 RPC but only u/s

325 RPC or Section 330 RPC and on that basis it is urged that since the offence of which ultimately the petitioners may be found guilty would not

be punishable with death or life imprisonment, the petitioners deserved to be admitted to bail. It is further urged that if admitted to bail, the

petitioners would not abscond and as such the object for which detention is generally ordered, namely to make the offenders face the trial would

not be frustrated by the grant of bail. It is argued that in case bail is refused to the petitioners, it would demoralise the police force and the police

would be reluctant to arrest criminals in future. Mr. Goni has placed strong reliance on Gudikanti Narasimhulu and Others Vs. Public Prosecutor,

High Court of Andhra Pradesh, to urge that it is a fit case where the petitioners should be enlarged on bail. learned Counsel has referred to various

passages from the judgment in support, of his submissions to urge that grant of bail is the rule and that in this case there were no suh exceptional

circumstances in existence which warranted the denial of bail to the petitioners. I shall discuss the said judgment in a later part of this order.

M/s, S. D. Sharma and R. P. Sethi appearing for the respondent-State have on the other hand argued that looking to the nature of the offence

the influence and character of the offenders, and their position and status vis-a-vis the deceased and other witnesses, it is a fit case in which bail

should be refused. It is maintained that the refusal of bail to those petitioners would not demoralise the police force but on the other hand the police

would realise that the Courts do not favour torture of the suspects during interrogation. The grant of bail to them, argued the learned Counsel

would create terror ""and sense of insecurity among the citizens in general and the weaker section of the society, namely Harijans in particular.

learned Counsel have placed strong reliance on The State Vs. Captain Jagjit Singh, to urge that the facts and circumstances of the case do not

justify the release of 'he petitioners on bail who if admitted to bail would tamper with the evidence and thus make a fair trial impossible.

Commenting upon the nature of the offence, it is argued by the learned Counsel that the offence which is borne out from the allegations of the

prosecution would fall u/s 302/34 RPC rather than Section 304/34 RPC and that the offence would not be u/s 330 or 325 RPC as alleged but that

it was premature to determine the exact offence which would be ultimately made out.

I have given my anxious considerations to the respective contentions raised at the bar and have perused the record of the case.

Indeed the grant of bail is a rule and its refusal is an exception but while granting bail, the court has to be satisfied that in a given case its grant is

necessary in the interest of justice. The basic question which must be present to the mind of the court while considering the question of bail is

whether the grant of bail would thwart the course of justice or would it further the course of justice. There cannot indeed by any inflexible rule

governing the grant of bail. Each case has to be decided on its own facts. However, certain guidelines have been formulated by the Courts from

time to time, which the Courts generally take into consideration while considering the question of grant or refusal of bail. While considering the

question of grant or refusal of bail, the Courts generally take into consideration,:...

(a) the nature of the charge;

(b) the nature of the accusation;

(c) the. nature of evidence in support of the accusation;

(d) the severity of the punishment to which the accused may be subjected;

(e) the danger of the accused abusing the concession of bail by way of absconding or tempering with the evidence;

(f) health, age and sex of the accused:

(g) the social position or status of the accused and complainant party; and last but not the least;

(h) whether the grant of bail would thwart the course of justice.

The above guidelines are not exhaustive but only illustrative but the same have guided the Courts while considering the, question of grant or

refusal of bail. Again the considerations which weigh with the Court before and after the conviction are also different inasmuch as the question of

the possibility of tampering with the evidence loses its significance and relevance after conviction.

In Gudikanti Narasimhulu and Others Vs. Public Prosecutor, High Court of Andhra Pradesh, on which reliance has been placed by Mr. Goni

the question for consideration of the grant of bail arose in a case in which the petitioner, in the Supreme Court, had been acquitted along with

others bv the trial Court and that acquittal had been set aside in the High Court. The petitioner had come to the Supreme Court after his conviction

had been restored by the High Court while upsetting the order of his acquittal. He had applied for bail while preferring his appeal against his

conviction in the Supreme Court. There was no suggestion that during the period when the appeal was pending in the High Court, the said

petitioner who was on bail had in any way abused the concession of bail. It was under these circumstances that during the pendency of the SLP

that Mr. Krishna Iyer, J., (as his Lordship then was) directed the petitioner to be enlarged on bail on his own bond to appear and receive the

sentence in the event of any adverse verdict from the Court. It is in the course of this judgment that his Lordship opined (Para 1):

Bail or Jail"" at the pretrial or post conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the

bench, otherwise called judicial discretion.

His Lordship considered some relevant criteria for granting and refusing bail to a person and in that connection observed:

The nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if con-

vicled or conviction is confirmed, also bears upon the issue.... Another relevant factor is as to whether the course of justice would be thwarted by

him who seeks the benignant jurisdiction of the Court to be freed for the lime being.

His Lordship at the same time cautioned the Courts not to grant bail without first enquiring into the antecedents of the applicant applying for

bail, to find out whether there was any likelihood of the applicant interfering with the witnesses for the prosecution or otherwise ""polluting the

process of justice, His Lordship then opined.

the delicate light of the law favours release unless -countered by the negative criteria necessitating that course.

The above judgment therefore, does not lay down that whenever an applicant comes to the Court for bail, it should invariably be granted to

him, without making any enquiry about the nature of the charge, the nature of the evidence, the liklihood of punishment and its severity and the

antecedents of the applicant. As a matter of fact the law laid down in the aforesaid judgment insists on the proper consideration of all these factors

while disposing of a bail application and there can be no quarrel with the proposition enunciated in the judgment. Actually, Krishna Iyer, J. has in

the aforesaid judgment reiterated, the guidelines which should govern the exercise of judicial discretion in the matter of grant of bail or its refusal.

In The State Vs. Captain Jagjit Singh, , a Bench of three Judges of the Supreme Court noticed with disapproval the order of the Bombay High

Court granting bail to the respondent, in that case, on the grounds that since two of his co-accused had already been granted bail and there was no

likelihood of the accused absconding and the trial was likely to take considerable time it was enough to entitle the respondent (in that case) to be

admitted to bail. Their Lordships went on to hold that though considerations which had weighed with the Bombay High Court were relevant

considerations, yet, those were not. the only considerations which should have been taken into account by the Court while granting bail. In the

words of their Lordships (Para 5 :

among other considerations, which a Court has to take into account in deciding whether bail should be granted in a non-bailable offence, was the

nature of the offence; and if the offence was of a kind in which bail should not be granted considering . its seriousness, the Court should refuse bail

even though it has very wide powers u/s 498 of the Cr.P.C.

Thus, it is obvious that the guidelines which their Lordships provided in The State Vs. Captain Jagjit Singh, and the ones which have been given

by Krishna Iyer, J., in Gudikanti Narasimhulu and Others Vs. Public Prosecutor, High Court of Andhra Pradesh, do not in any way materially

differ. Both these judgments show that in considering the question of grant of or refusal of bail, the considerations noticed in (a) to (h) in the earlier

part of this order are relevant and must be present in the mind of the court while considering the question of bail. Let me now apply those

guidelines to the case in hand.

At this stage when the evidence is yet to be led, this Court can only look into the prosecution allegations which appear in the police report u/s

173 Cr.P.C. and the case diaries. It would neither be desirable nor proper to meticulously judge the effect of evidence which would be ultimately

led by the prosecution and to determine what could have been the intention of the petitioner in inflicting the injuries on Inderjit deceased. The

question of intention is always gathered from the circumstances of a given case and it would be premature to express any opinion on this aspect at

this stage and, therefore, I will not express any opinion as to whether or not ultimately the offence u/s 304 R. P. C, would be made out, The result

of the inquest, shows that Inderjit died as a result of the injuries received by him while in police custody. Prima facie it, therefore, shows that the

deceased died of injuries inflicted on him by the police and that itself exhibits the seriousness of the alleged crime. I repeatedly enquired from Mr.

Goni as to what was the explanation of the petitioners with regard to the death of Inderjit, whose dead body was recovered from the custody of

the petitioners, but apart from saying that the death by torture even if it be assumed to have been caused because of police torture, would not

amount to an offence u/s 304 RPC and would amount only to an offence u/s 330, R.P.C. Mr. Goni has failed to give any explanation on behalf of

the petitioners. The alleged recovery of the dead body from the custody of the petitioner is a matter which cannot be lost sight of at this stage. The

charge against the petitioners is of a serious nature and even more serious when we consider that the petitioners are the police officers. When the

protectors of law become the breakers of law, the gravity of the charge assumes even more significance.

Looking to the prosecution allegations, it is apparent that with a view to cover up the death of Inderjit in police custody, Mazhar AH Shah

petitioner No. 1, fabricated some record in the Police Station, with a view to show that he was not present at the Police Station at 4.30 P. M.

Record was also allegedly fabricated by him to show that the case in which Inderjit had been arrested was the one u/s 307 RPC in addition to

Section 4/27 Indian Arms Act. According to the prosecution allegations, the record of the police station had been fabricated by the petitioners so

as to add an offence u/s 307 RPC to the case against Inderjit. Apart from this attempt to tamper with the record, the prosecution allegation against

the petitioner Mazhar Ali is that later on he falsely showed the recovery of a 'Toka' from Inderjit and in so doing recorded false statements of some

witnesses and fabricated false clues. The petitioner No. I tampered with the prosecution evidence and tried to fabricate and create false evidence

and false clues with a view to justify the arrest of Inderjit on the date when he died in police custody and to exonerate himself of the charge. It is a

serious matter and cannot be ignored at this stage of considering their prayer for bail.

Leaving aside the nature of the charge and the allegations that they have tried to tamper with the prosecution evidence, the Court cannot lose

sight of the fact that the petitioners who are police officers wield considerable influence and if admitted to bail may at tempt to abuse the

concession of bail and interfere with the prosecution witnesses. Leaving aside the witnesses who are Harijans, some of the other witnesses

including eye witnesses were one time the subordinate of petitioner No. 1 and the colleagues of petitioners 2 and 3 at the police station

Bakhshinagar, and looking to the manner in which the record has been allegedly tampered with, the possibility that the petitioners, if admitted to

bail, might interfere with the prosecution witnesses cannot be lightly ignored. It is obvious that the grant of bail, under these circumstances, would

thwart the course of justice rather than advance the cause of justice. The apprehension of the prosecution that if admitted to bail, the petitioner

would abuse the concession, is in the facts of the case, not a fanciful apprehension. In the facts and circumstances of the case, the assurance of Mr.

Goni that the petitioners would neither abscond nor jump bail pales into insignificance, for those are not the only grounds which have to be

considered by the court while granting or refusing bail. Neither the nature of the charge, the nature of the evidence nor the antecedents of the

petitioners, who attempted to tamper with the evidence and made attempts to fabricate evidence and create false clues, justify the grant of bail to

them at this stage. I am satisfied that the grant of bail to the petitioners at this stage, when the evidence is yet to be recorded, would in view of the

facts and circumstances detailed above, thwart the course of justice. It is as such not a fit case in which the petitioners should be enlarged on bail.

Accordingly their application is rejected at this stage.

Before parting with this order I would, however, like to observe that nothing said hereinabove should be treated as any expression of opinion

on the merits of the case. It will be for the trial Court to find out what offence, if any, is made out against the petitioners. The observations made in

this order have been made only with a view to consider the desirability of granting or refusing bail to the petitioners pending their trial,

It shall be open to the petitioners to apply for bail before the trial Court after the prosecution evidence is recorded and that application shall be

disposed of on its own merits. It is also directed that the trial of the case shall be expedited.