Rakesh Jaiswal vs State of Chhattisgarh

P.C. Naik, J.

Since these two applications filed u/s 438 of the Code of Criminal Procedure, for grant of anticipatory bail relate to Crime No. 152 of 2001 and offences punishable under Sections 302, 394, 201 and 120B were registered by the Police Station, Kota, District Bilaspur, they were heard analogously and are being disposed of by this common order.

The facts giving rise to this application are that at about 8.00 AM on 20.05.2001 a report was lodged at Police Station Lormi by one Manish Dadsena that his father Jawahar Dadsena, who had left for Bilaspur via Kota-Ratanpur on 19.05.2001, had not returned to Lormi nor his whereabouts were known. Subsequently, on 23.5.2001 the Sarpanch of Village Nawapara-Jogipur Smt. Kuntibai informed the Police Station Kota that a body of unidentified person aged about 45 years was lying in the agricultural field belonging to Bhagbali. On the basis of this report, Marg No. 32/2001 was registered by Police Station Kota. The Police reached the spot and a panchnama of the unknown body was drawn up. Later the body was identified to be of the missing person, Jawhar Dadsena. Finding the death to be unnatural, Crime No. 152/2001 was registered for an offence u/s 302 of Indian Penal Code.

According to the prosecution, deceased Jawahar Dadsena, Latel and Punni were three brothers. Eldest son of Latel was married to Tripti, who is the sister of the accused-applicant Rakesh Jaiswal. Because of the attitude of the said Tripti there were frequent quarrels and altercations in the family, which ultimately separated as the deceased, though a younger brother, was treated as head of the family, Tripti had a grudge, which led to frequent quarrels. The marriage of nephew of the deceased Rajkumar was settled and the deceased, which was also not liked by the said Tripti, made all arrangements. According to the prosecution, the deceased usually went to Bilaspur in connection with his business on Fridays and Saturdays. On 19.5.2001 he had a discussion with his brother-in-law Ramesh over the telephone who had asked him to go to Bilaspur via Ratanpur to show the horoscope to the Priest at Ratanpur. On coming to know about this, Tripti informed her brother Rakesh Jaiswal about the programme, who at that time was posted as Chief Municipal Officer at Kota. It is the prosecution case that while the deceased was passing through, accused Jay Yadav, who has since been released on bail by the Sessions Judge, Bilaspur, signalled the deceased to stop and asked him to go to the residence of the Chief Municipal Officer (accused-applicant) for a cup of tea. Inside the quarters of the applicant, there was some altercation due to which the applicant-accused along with the help of his ''Sadu'' said to be Ravindra Kela (applicant in M.Cr.C. No. 793/2002), who is the co-brother of the applicant Rakesh Jaiswal, assaulted the deceased with a Gupti, which resulted in his death. The body was shifted to the residence of accused Jay Yadav. Thereafter, as per plan accused Rakesh Jaiswal went on a picnic. On the night of 20th May, 2001 one Mangal along with Jay Yadav removed the body of the deceased from Jay''s quarters and threw it in the agricultural field from where it was recovered. A statement of Shantibai, who is stated to have seen Jay Yadav signalling the deceased to stop, has been recorded. She has also stated that on 20th night she had seen accused Jay Yadav and Mangal on a tractor, which returned late in the night. It is alleged by the prosecution that a black coloured Motor Cycle (Splendor) was seen in the office premises. The Gamcha and Gupti have been recovered on the basis of a memorandum of accused Jay Yadav.

According to the Doctors, who performed the Post-mortem, "no cause and mode of death can be given due to advanced decomposition and putrification of the body". When the body was found, as the psot-mortem report indicates, it was in a highly decomposed, putrified and mummification had set in. Scalp tissue and hair, eyeballs, nose, face and lips were, as per the Doctors, absent. A decomposed wound 5x4 inches was found on the left side of the neck. As it appears, the body was identified on the basis of wearing apparels, which were found on the body/spot.

At this stage, it may be mentioned that a challan has been filed against the applicant-Rakesh Jaiswal and Jay Yadav. The applicant Ravindra Kumar Kela, who is a Sub-Engineer in Public Works Department posted at Katghora, however, has not been shown as an accused. In other words, no charge sheet has been filed against him.

According to the learned State counsel, since a charge sheet has not been filed against the applicant-Ravindra Kela, his application is liable to be rejected, as it cannot be said that he has a reasonable apprehension that he will be arrested in connection with a non-bailable offence.

In reply, it was contented by Shri Ansari learned counsel for the applicant that in view of the fact that the name of the applicant Ravindra Kumar Kela has been mentioned by the prosecution at several places in the case diary the applicant-Ravindra Kumar Kela, has an apprehension that he may be arrested. Attention of the Court is also invited to the objections taken on behalf of the State during the course of hearing in opposing his bail application on merits.

In reply, the learned counsel for the applicant made a reference to the objections taken on behalf of the State even before the Sessions Court and prayer for interim bail was made before this Court. In view of the rival contentions raised, the Court had called upon the State counsel to make a categorical statement as to whether or not the applicant Ravindra Kumar Kela is required in connection with the said crime. However, the State counsel fairly stated that it would not be possible for him to make a positive statement one way or the other because that would depend on various facts, which may subsequently come on record. He, however, fairly did not dispute the position that the name of the applicant-Ravindra Kela finds place in the case diary in connection with his participation in the said crime. In this view of the matter, it cannot be said that the applicant does not have a reasonable apprehension that he may be arrested in connection with a non-bailable offence.

Before proceeding further, it may be mentioned that the applicant Rakesh Jaiswal is working as Chief Municipal Officer and he is presently posted at Raigarh. He was granted interim bail on 20.05.2002, which vide order dt. 27.5.2002 is to continue till the next date of hearing. It was submitted by the learned counsel that the applicant had presented himself at the Police Station but the police officers took no notice, either of his presence or the copy of the bail order. He had also intimated this fact to the Superintendent of Police. It is further submitted that he is attending his duties but this is denied by the State counsel, who has stated that the applicant is absconding.

According to the learned counsel for the applicants, no case whatsoever much less a case u/s 302 I.P.C. has been made out against the applicants. It is submitted that the entire case is on the statement of Jay Kumar Yadav who has been made a co-accused and has since been released on bail by the trial Court. The statement of the said Jay Yadav was recorded on 5.9.2001 in which it is stated that Rakesh Jaiswal, C.M.O. Kota and his co-brother-in-law (not named) were responsible for the death of Jawahar Dadsena. It is further stated that a Ghamcha was put around the neck and was pulled by C.M.O. Rakesh Jaiswal and his co-brother-in-law and thereafter the body was dragged and kept in a room. In a subsequent statement recorded on 17.2.2002, he has stated that C.M.O. Rakesh Jaiswal caught the collar of Jawahar, pushed him on the ground and thereafter dealt a Gupti blow on the right side of the neck, while he was holding his hand and feet. When Jawahar cried out for help, the C.M.O Rakesh Jaiswal covered his mouth with a ghamcha and lungi. After sometime Jawahar Dadsena died and his body was wrapped in a thick bed sheet and it was removed from the C.M.O''s quarters and kept in the quarters of Jay Kumar Yadav. In this statement there is no reference to any part played by the co-brother-in-law of the applicant-Rakesh Jaiswal. Incidentally, he has also not been named though referred to as ''Sadu" in the statement of Jay Kumar Yadav recorded on 5.9.2001. Attention was also invited to the statement of Shantibai which was recorded on 4.2.2002 wherein she had stated that about 9 to 10 months back at about 10.00 A.M. she saw Jawahar Dadsena of Lormi coming down towards the Kota Naka on a Splendor Motor Cycle. He was stopped by Jay Kumar Yadav, a peon of Rakesh Jaiswal, C.M.O. Kota and thereafter Jawahar parked his Motor Cycle and entered the house of the C.M.O. She further stated that she had seen them shaking hands. Thereafter, according to her, the said Jay Kumar Yadav had come to lea stall owned by Dillu from where he had taken tea and pan. After this, she stated that she had left the tea stall. She had further stated that at about 3 O''clock in the night when she had come out to answer the call of nature, she saw a tractor-trolley coming out of Panchayat Office and going towards the station, it was driven by Mangal and Jay Kumar Yadav was also sitting on the trolley. Further statement of Jay Kumar Yadav was also recorded on 28.11.2001 in which he had slated that when Ramesh Jaiswal (not the applicant) was the C.M.O. Kota, Jawahar Dadsena used to visit his house once in a week but he i.e. Jay Kumar Yadav, stated that to his knowledge Jawahar Dadsena never came to the house of Rakesh Jaiswal -the applicant. He has further stated that Rekesh Jaiswal, his family members and other relatives had left Kota and gone for a picnic to Amarkantak from where they returned on 20.5.2001. He also stated that after the body was recovered, his statement was recorded but because of the fear of police personnel, he had made a wrong/incorrect statement regarding the applicant Rakesh Jaiswal. A statement of Rakesh Jaiswal was also recorded on 25.11.2001 wherein he had stated that on the date of alleged incident he was not at Kola, but he was at Amarkantak for a picnic.

On the basis of the material brought on the record by the prosecution it was the submission of the learned counsel for the applicants, that the applicants are being falsely implicated. According to the learned counsel for the applicant-Rekesh Jaiswal the only material against the applicant are four self-contradictory statements of a co-accused who has since been released on bail and the statement of Shantibai who had seen the deceased entering the house of the applicant about 9 to 10 months back when the incident is alleged to have taken place. This factual position is also not disputed by learned counsel for the Stale. It is also not disputed that this is not a case where the applicants are named in the FIR or that there has been any recovery of any incriminating material made from them. As regard the applicant-Revindra Kumar Kela, it was the submission of the learned counsel that the very fact that a charge sheet has not been submitted against him even assuming, though by implication, that he is named by Jai Kumar is itself sufficient to allow his prayer.

Having considered the matter in all its aspects, the Court is of the opinion that a case for grant of anticipatory bail for a limited period has been made out. Accordingly it is directed that in the event of their arrest, the applicants shall be immediately released on bail subject to the following conditions:

(i) Each applicant shall furnish a personal bond in the sum of Rs. 25,000/- with two sureties of the like sum to the satisfaction of the concerned police officer arresting them.

(ii) That the applicants shall make themselves available as and when they may be required for the purpose of further interrogation and shall cooperate with the investigating agency.

(iii) That the applicants shall not leave India without prior permission of the Court while they are on bail.

(iv) Within a period of thirty days from the date of their arrest and release on bail pursuant to this order, the applicants shall move an application u/s 439 of Cr. P.C. for grant of regular bail. If however, they fail to make such an application within the said period of thirty days, the order of anticipatory bail shall become inoperative on the expiry of the said period of thirty days; and

(v) It is further directed that in case application as directed is filed, the order of anticipatory bail shall remain in force till the disposal of the application u/s 439 Cr. P.C. by the Court below. It is however, made clear that in the event, such an application is moved, it shall be considered and disposed by the Court below on its own merit and the said Court shall in no way be influenced by this order of anticipatory bail or any observation or discussion made above.

The applications are allowed to the extent indicated above.