Shailender Bishnoi vs Haryana State through CBI

M.L. Singhal, J.

Through Crl. Misc. No. 1713M of 1998 Shailender Kumar Bishnoipetitioner has prayed for the grant of bail to him in case FIR No. 181 dated 8.5.1997 earlier registered at Police Station Sadar, Hisar under Sections 302/346/201 read with Section 120B of the Indian Penal Code, now case No. RC 28(S)/94/CHS under Section 364 of the Indian Penal Code. Through Crl. Misc. No. 21221M of 1998 Kuldeep Singh Godara has prayed for the grant of bail to him in the said case.

Through this common order which I propose to pass now, both these Crl. Misc. Petitions shall be disposed of.

The prosecution case in brief is that one Smt. Sushil Kumari was posted as Junior Lecturer in Govt. Girls Senior Secondary School, Hisar for the Board examination of 10+2 standard held in March, 1993. She was put to performing the duties of in vigilanter. Smt. Santosh Kumari wife of coaccused Constable Mekesh Kumar was one of the candidates who appeared at the said examination centre, where Smt. Sushil Kumari was put on invigilation. Constable Mukesh Kumar who was gunman of Shri Dura Ram son of Manphool Singh, nephew of the then Chief Minister Haryana (Ch. Bhajan Lal) approached Smt. Sushil Kumari with request to permit his wife to copy in the examination hall. Smt. Sushil Kumari was faithful so far as the discharge of her duties was concerned. In her zeal that she should be true to her duty, she rebuffed him instead of acceding to his request. Similarly, one Ms. Raj Kumari alias Raju daughter of Sh. K.K. Sharma, the then DSP, Hansi was also an examinee. Shailender Bishnoi also requested Smt. Sushil Kumari to help Raj Kumar in copying in the examination hall which request was also turned down by Smt. Sushil Kumari. Smt. Sushil Kumari rather hardened her stand visavis Mukesh Kumar and Shailender Bishnoi. According to the findings arrived as a result of investigation, Shailender Bishnoi had illicit relations with said Raj Kumari. Shailender Bishnoi made yet another attempt to approach Smt. Sushil Kumari through Shri Subhash Bagri son of Shri Mani Ram Bagri on 30.4.1993 on the occasion of farewell party in the school arranged to say farewell to Smt. Santosh Sharma. Shailender Bishnoi also attended that party. Alteration (Altercation ?) took place between Smt. Sushil Kumari and Shailender Bishnoi at that party. He, felt insulted. Subhash Bagri is said to have asked Smt. Sushil Kumari to accompany him and his wife to Delhi on 30.4.1993 at 4.30 P.M. but she refused. It is alleged that during the night of 30.4.1993, Subhash Bagri alongwith Shailender Bishnoi, Kuldeep Godara, Joginder Tiger and Constable Mukesh Kumar assembled in a building know as "Raj Mahal" and hatched a conspiracy to kidnap Smt. Sushil Kumari on 1.5.1993. In pursuance of that conspiracy, these five persons alongwith one more who is said to be a friend of Subhash Bagri, reached beneath the bridge on 1.5.1993 at about 5.30 A.M. in a Maruti car belonging to some bania of Hisar. That car was being driven by Joginder Tiger. When Smt. Sushil Kumari was entering the school gate, she was called through a girl student named Miss Raju. When she came out, she was pushed into the vehicle and taken to the building known as "Raj Mahal" and kept there up to the morning of 3.5.1993. On that day at about 8 or 8.30 A.M., she was seated in the vehicle on the pretext that she would be released. This time, Constable Mukesh Kumar was said to be driving the car towards Sirsa road. Joginder Tiger was sitting beside him on the front seat. It is alleged that Subhash Bagri strangulated Smt. Sushil Kumari with her scarf while Shailender Bishnoi, Kuldeep Godara and Subhash Bagri''s friend helped Subhash Bagri in strangulating Smt. Sushil Kumari. The dead body of Smt. Sushil Kumari was thrown in Baropal canal which is 3738 kilometres away from Hisar. Smt. Sushil Kumari did not return home after duty hours on 1.5.1993. Search was made for her. Her father Gaje Singh moved application to Station House Officer, Police Station Civil Lines, Hisar suspecting that his daughter Smt. Sushil Kumari might have been abducted as she was wearing gold ornaments or as she had objected to the copying in the examination hall where she was in vigilanter. On the bias of the said application, entry was made in the Daily Diary Register of the thana. On 8.5.1993 Shri S.S. Saharn, husband of the sister of Smt. Sushil Kumari moved another application to the Senior Superintendent of Police, Hisar on the basis of which, case FIR No. 181 dated 8.5.1993 was registered at Police Station Civil Lines, Hisar under Section 364 Indian Penal Code. Since Haryana Police could not successfully unearth the crime, the Govt. of Haryana vide letters dated 22.7.1993 and 11.8.1993, requested the Govt. of India to entrust the case for investigation to the Central Bureau of Investigation. The Govt. of India asked the Central Bureau of Investigation (CBI) vide letter dated 4.3.1994 to take up the investigation of the case. As a result, case No. CR28(S)/94/CHG under Section 364 of the Indian Penal Code was resitered by CBI on 7.7.1994. In the meantime, Shri R.S. Dhull, Advocate filed petition before the Apex Court praying for the expeditious investigation and necessary action. Their Lordships of the Hon''ble Supreme Court issued direction vide order dated 19.9.1995 to the CBI to complete the investigation within two months and to submit report. A report was submitted accordingly by the CBI. During investigation, constable Mukesh Kumar was arrested. During interrogation, he made a disclosure statement to the CBI. Constable Mukesh Kumar was produced before the Special Judicial Magistrate, CBI Punjab at Patiala before whom he made statement which was recorded by him under Section 164 of the Code of Criminal Procedure. On the basis of confessional statement made by Constable Mukesh Kumar, before the Special Judicial Magistrate, Patiala, Shailender Bishnoi, Kuldeep Godara, Joginder Tiger and Mukesh Kumar were interrogated. Joginder Tiger committed suicide during the course of investigation. Shailender Bishnoi and Kuldeep Godara were found to be friends during investigation. Mukesh Kumar and Joginder Tiger were also found to be friends. Constable Mukesh Kumar disclosed the complicity of some sixth person also. Sixth person disclosed by Constable Mukesh Kumar could not be identified or traced. The vehicle said to have been used in the commission of the crime also could not be traced. The dead body of Smt. Sushil Kumari could also not be traced. After investigation, charge sheet was filed against Constable Mukesh Kumar alone under Sections 364/346 IPC. In the meantime, the petition filed by Shri R.S. Dhull, Advocate was disposed of by the Supreme Court by order dated 13.2.1996 with liberty to him to argue before the trial Court that persons other than Mukesh Kumar were also involved in the commission of the offence and they be also summoned to face trial. An application under Section 319 Cr.P.C. was accordingly moved before the trial Court by Shri R.S. Dhull, Advocate. Trial Court by order dated 1.10.1997 after recording some evidence summoned Shailender Bishnoi, Kuldeep Singh Godara, and Subhash Bagri for trial under Sections 364/346/302/201 read with Section 120B IPC and also directed co accused Mukesh to stand trial for these offence with them.

It was submitted by Sh. H.L. Sibal, Senior Advocate that Subhash Bagri was allowed bail by another Bench of this Court vide order dated 9.1.1998 in Crl. Misc. No 25508M of 1997 as according to the Investigating Agency, he had no association with the remaining four accusedpersons nor was it pointed out by the CBI or Sh. R.S. Dhull, Advocate that there was any direct or circumstantial evidence to suggest any link between Subhash Bagri and the other accused and further the confessional statement made by him (Constable Mukesh Kumar) before the Special Judicial Magistrate, CBI Patiala was found to be not true by the CBI on verification and also the same was retracted by him. He submitted that the case of Shailender Bishnoi is substantially the same as that of Subhash Bagri. It was also submitted that only Mukesh Kumar was challaned and Shailender Bishnoi was shown in column No. 2 and the prayer of the police was that there was no sufficient evidence to prosecute Shailender Bishnoi and he should be discharged. It was also submitted that earlier during investigation, when the offence was one under Sections 364/346 of the Indian Penal Code, Shailender Bishnoi was arrested on 12.12.1994. He was allowed bail by the learned Special Magistrate vide order dated 13.3.1995, when the police had failed to put in challan. It was also submitted that the order allowing him bail should be allowed to hold the field and it should not make any difference if he (Shailender Bishnoi) has now been summoned for trial in exercise of the powers vesting in the Court under Section 319 of the Code of Criminal Procedure for an offence punishable under Section 302 IPC. It was also submitted that bail was granted to Shailender Bishnoi under Section 167(2) of the Code of Criminal Procedure in the case itself in which all these allegations were levelled against him and the coaccused and the mere filing of the chargesheet subsequently on an application under Section 319 of the Code of the Criminal Procedure on the orders of the Court on that application, would not effect the right of the petitioner to remain on bail, unless bail is cancelled, in view of the principles enshrined in Section 439(2) Cr.P.C. It was submitted that the learned Sessions Judge should not have sent him to jail simply because he was summoned for trial under Sections 302/129B IPC. He should have allowed him to remain on bail which had been granted to him because of the nonsubmission of the challan within 90 days of the date of his arrest. It was submitted that it should have been of no consequence and should not have weighed with the learned Sessions Judge that now the offence was different from the one in which he had been allowed bail.

Learned counsel for the petitioner submitted that bail allowed to Shailender Bishnoipetitioner in view of the provisions of Section 167(2) Cr.P.C. should enure even if it had been granted for a different offence though now he had been summoned for a different offence.

Section 167 Cr.P.C. reads as follows :

"Procedure when investigation cannot be completed in twenty four hours

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty hours fixed by Section 57, and there are grounds for believing that the accusation or information is wellfounded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of subinspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction :

Provided that

(a) The Magistrate may authorises the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this subsection shall be deemed to be so released under the previsions of chapter XXXIII for the purposes of that chapter.

(b) no Magistrate shall authorse detention in any custody under this section unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

xx xx xx xx xx xx"

It is clear from the plain language of Section 167 Cr.P.C. that where the investigation remains incomplete and 90 days elapse from the date of arrest of the accused for an offence punishable with death or imprisonment for life or for a term of not less than ten years, Magistrate will allow bail and he will not authroise his detention beyond that period. In this case provisions of Section 167(2) of the Cr.P.C. were brought into play by the Magistrate when he allowed bail to Shailender Bishnoi vide order dated 13.3.1995, when challan had not been put in and the investigation was incomplete for an offence punishable under Sections 364/346 IPC.

After the learned Sessions Judge had summoned him for trial in exercise of the powers vesting in him under Section 319 of the Code of Criminal Procedure on appearance of the accused before him, what the learned Sessions Judge is required to do is laid down in Section 319 itself. Section 319 Cr.P.C lays down as follows :

"Power to proceed against other persons appearing to be guilty of offence (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under subsection (1) then

(a) the proceedings in respect of such person shall be commenced afresh, and the witness reheard;

(b) subject to the provisions of clause (a) the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."

The provisions of Section 319 Cr.P.C. are thus independent of the provisions of Section 167(2) Cr.P.C. Mukesh Kumar is said to have made confession before the Special Judicial Magistrate, Patiala in which he is said to have stated that Shailender Bishnoi and Kuldeep Singh Godara had taken Raju to Govt. Senior Secondary School, Hisar and were helping her to answer the question paper in a separate room. On seeing this Smt. Sushil Kumari, Teacher objected to and Shailender Bishnoi threatened her with dire consequences. Thereafter, he alongwith Shailender Bishnoi, Kuldeep Singh Godara, Joginder Tiger and Subhash Bagri conspired to teach a lesson to Smt. Sushil Kumari and consequently they kidnapped her on 1.5.1993 from the gate of the school in a Maruti Van No. HYE/HYS5014 and she was kept confined in a house known as "Raj Mahal" till 3.5.1993 and on 3.5.1993 at about 8/8.30 P.M. she was taken in the same Maruti Van and murdered near Bodopal Canal and was thrown in running canal.

It was submitted by Sh. R.K. Handa, Advocate for the CBI that the allegations against the petitioner are very serious. Petitioner is an influential person. If he is allowed bail he might try to subvert the prosecution evidence.

It was submitted by the learned counsel for the petitioner that in exercise of powers vesting in him, learned Sessions Judge has declined to summon Sh. Bhajan Lal, former Chief Minister of Haryana, his two sons Chander Mohan and Kuldip Bishnoi, Anil Dabra, SP of Hisar and Raj Kumari and complainant is in revision against that order before this Court. In view of the pendency of the revision, the trial will not conclude in the near future.

Confession made by one accused incriminating himself and the other co accused before a Judicial Magistrate can be a good piece of evidence even if the same is subsequently retracted. Even a retracted confession without corroboration can be the basis of conviction provided the Court feels that there is ring of truth about it and it can be safely acted upon without corroboration.

Learned counsel for the petitioner further submitted that Mukesh who according to the prosecution is the prime accused was allowed bail by Hon''ble Mr. Justice P.K. Jain vide order dated 10.11.1997 passed in Crl. Misc. No. 22748M of 1997. It was submitted that earlier he had been allowed bail in view of the provisions of Section 167(2) Cr.P.C. and he was directed to be rearrested by the learned Sessions Judge vide order dated 1.10.1997, when the Sessions Judge felt that there was prima facie case against him (Shailender Bishnoi), Subhash Bagri and Kuldeep Singh Godara under Sections 364/346/302/120B IPC after he had examined four prosecution witnesses.

It would bear repetition that if bail is granted to an accused in view of the provisions of Section 167(2) Cr.P.C. on account of default of the Investigating Agency in completing the investigation within 90 days or 60 days as the case may be of the date of his arrest, that will not entitle a co accused bail if he is summoned for trial for a more serious offence by the Court in exercise of power vesting in it under Section 319 of the Code of Criminal Procedure.

Learned Counsel for the petitioners submitted that while declining bail to Kuldeep Singh Godara by Hon''ble Mrs. Justice (Dr.) Sarojnei Saksena, her Lordship had expressed herself that the trial Court shall conclude the trial expeditiously. That order was passed on 16.4.1998. Learned counsel for the petitioners submitted that there can be no hope of the expeditious conclusion of the trial as there is revision pending in this Court against the order passed by the learned Sessions Judge, Ambala declining to summon Ch. Bhajan Lal, Ex. Chief Minister, Haryana etc. and till that revision is disposed of the trial cannot be resumed. He further submitted that if that revision is accepted they will also be charged. They will be put on trial alongwith Mukesh Kumar etc. and the statements of Gaje Singh etc. PWs will be recorded de novo. He further submitted that if that revision fails and they are not summoned by this Court, Gaje Singh etc. who have not been crossexamined so far, will be crossexamined by Mukesh Kumar etc. He further submitted that there is long list of the witnesses to be examined at the trial and the trial will take quite long.

Learned counsel for the petitioners submitted that there is no evidence as to the kidnapping of Sushil Kumari by Shailender Bishnoi etc., apart from the judicial confession said to have been made by Mukesh Kumar coaccused, which was later on retracted by him. He submitted that the retracted confession may constitute good evidence so far as Mukesh is concerned even without corroboration but it may not be prudent for the Court to rely upon the retracted confession of Mukesh Kumar with (without ?) corroboration on all its material particulars against his coaccused Shailender Bishnoi etc. He submitted that if confession said to have been made by Mukesh Kumar which was later on retracted goes out of consideration so far as Shailender Bishnoi etc. are concerned, prosecution will be left with no evidence to bank upon. He submitted that even in the judicial confession said to have been made by Mukesh Kumar before the Magistrate, he attributed strangulation of Sushil Kumari with her scarf to Subhash Bagri. The attribution made to Shailender Bishnoi, Kuldeep Singh Godara etc. is that they helped in strangulating her.

Looking to the long incarceration of Shailender Bishnoi and Kuldeep Singh Godarapetitioners and the trial being at a standstill and there being no prospect of the trial proceedings further in the near future as also the nature of evidence collected by the CBI during investigation to substantiate the charge, I think bail should be allowed to Shailender Bishnoi and Kuldeep Singh Godara petitioners. So, bail to them to the satisfaction of learned Sessions Judge, Ambala.