State (Delhi Administration) vs Gurucharan Singh and Others

Yogeshwar Dayal, J.

(1) These are two applications filed on behalf of the State u/s 439(2) of the Code of Criminal Procedure

(2) CR. M.(M) 456 of 1977 has been filed for cancellation of the order of bail dated 1/08/1977 passed by Sessions Judge, Delhi, granting bail to P. S. Bhinder, Deputy Inspector General of Police. Gurcharan Singh. Superintendent of Police, Amarject Singh, Inspecar of Police and Parsu Ram. constable.

(3) CR. M(M) 474 of 1974 has also been filed by the State for cancellation of bail granted, by different orders dated 11th August,1977, passed by the learned Sessions Judge, to Raj Kumar Sharma, S.D.P.O. Shahdara Division, Delhi, Rohtas Singh, Inspector, formerly S.H.O. Police Station, Farash Bazar, East District Delhi, Harkesh, Inspector of Police, Sukhdev Singh, formerly S.D.P.O. Gandhi Nagar, East District, Delhi ,Sita Ram Vohra, Sub-Inspector of Police, Rajeshwar Pershad Gautam, Sub-Inspector, Rajinder Singh, Sub-Inspector and Dharampal Singh, Sub-Inspector.

(4) The facts of the case are that on 6/04/1977, the Central Government desired that an inquiry be made into the circumstances relating to the death of Sunder Singh alias Sunder which took place at Delhi on the night intervening 24/ 25/11/1976 while he was in police custody.

(5) During the preliminary inquiry about 53 witnesses were examined. As a result of the inquiry, Ramendra Singh, Superintendent of Police (C.B.I.) Special Police Establishment got first information report registered on 10/06/1977. In the heading of the F.I.R. against the column ''name and address of the accused'', it was stated that .. . . .Some Delhi Police Personnel". The offences mentioned were under sections 120B Indian Penal Code read with Section 302 Indian Penal Code , 302, 193 and 218 Indian Penal Code . It was further stated in the F.I.R. as under :

"ENQUIRIES made so far have revealed that the ostensible purpose for which Sunder Singh @ Sunder was taken out of Hawalat as Ps, Shahdara on 24-11-76 did not actually exist and further that his death occurred in the custody of the police party who accompanied him on the said night on 24/25-11-76. It is also revealed that SunderSingh @ Sunder''s death took place in circumstances which led to the conclusion that he was murdered by the members of the police party. Before agreeing to the commission of the said offence and participating in it some of the police officers had also fabricated evidence and prepared false records against the deceased or had caused the same to be done. A regular case is, Therefore, registered now and the investigation is entrusted to Shri Abnash Chander Dsp Cbi Spe CIU(A) New Delhi".

(6) After the registration of the F.I.R., the investigations were conducted by Shri Abnash Chander. Dsp, C.B.I. (SPE) under the supervision of the Superintendent of Police of the same Branch.

(7) On 9-8-1977, the Special Police Establishment (C.B.I.) filed in court a charge-sheet dated 8/08/1977. This charge-sheet was filed against 13 accused. The list of accused persons attached to the charge-sheet is as under :

Shri Gurcharan Singh, Ips, formerly Supdt. of Police, East District ,Delhi.2. Shri Raj Kumar Sharma (R. K. Sharma) Sdpo Shahdara, East District, Delhi.3. Shri Rohtas Singh, Inspector, S.H.O., P.S. Farash Bazar, East Distt., Delhi.4. Shri Harkesh, Reserve Inspector, Police Lines, Seelampur, East District, Delhi.5. Shri Amarjit Singh, Inspector, S.H.O. police station, Shahdara, East Distt., Delhi.6. Shri Parsu Ram, constable, P.S. Farash Bazar, East Distt.,Delhi.7. Shri Sukhdev Singh, S.D.P.O. Gandhi Nagar, East Distt..Delhi.8. Shri Sita Ram. Vohra, S.I. P.S. Shahdara, Delhi-9. Shri Rajeshwar Prasad Gautam, S.I.. Special Staff, East Distt., Delhi.10. Shri Rajinder Singh, S.I. in charge Police Post, Krishnan agar ,East District, Delhi.11. Shri Dharam Pal Singh, S.I. of Police, Special Staff, East District ,Delhi.12. Shri Pritam Singh Bhinder, Ips, formerly D.I.G. (Range),Delhi.13. Shri R. C. Kaushik, S. 1. of Police, P.S. Farash Bazar, East District, Delhi. and unknown persons.

(8) It will be noticed that out of the aforesaid accused, learned Sessions Judge had, by the impugned order dated 1/08/1977,accepted the bail applications of accused Gurcharan Singh, Superintendent of Police (A-1), P.S. Bhinder, Deputy Inspector General (Range)(A-12), Parsu Ram, Constable (A-6) and Amarjit Singh, Inspector(A-5) even before the filing of the charge-sheet.

(9) At the time of the filing of the charge-sheet, these four accused were already on bail. Accused R.C. Kaushik, S.I. (A-l 3) was evading arrest till then. The rest of the accused were produced in custody and were directed to be released on bail by the learned Sessions Judge by different orders dated 11-8-1977.

(10) The charge-sheet, after reciting the facts and the circumstances of the case, and the oral and documentary evidence gathered during investigation ,mentions that sometimes in September, 1976, the accused and the other unknown persons had entered into a planned criminal conspiracy to murder Sunder Singh alias Sunder in pursuance of which is letter from S.S.P. Tek chand, Gurgaon, to D.I.G. Hissar about the plan for false encounter

(11) On 31-8-1976, Sunder was arrested at Jaipur. It is alleged that thereafter Sunder made applications to the Magistrate at Jaipur that there was a danger to his life at the hands of Delhi Police.

(12) On 3-9-1976, the Chief Judicial Magistrate, Jaipur, passed an order that Sunder may not be transferred to other State without completing investigation of the cases at Jaipur. However, on 24-9-1976,the Chief Judicial Magistrate, Jaipur, ordered his handing over to the police in view of non-bailable warrant issued by a metropolitan magistrate of Delhi, but directed that two officers of Rajasthan Police should be part of the escort party while transferring Sunder from Jaipur to Delhi. Before this order was passed, it is the case of the prosecution that Inspector Amarjit Singh (A-5) entered the chamber of Mr. Saxena, Magistrate, at Jaipur, and told him inter alias that "RAJASTHAN Police Ne Ise Hauva Bana Rakha Halhame Mil Jave To Do Din Men Thikane Laga DENGE" whereupon the Magistrate had asked him to leave his Chamber and let the law take its own course. It is further stated that while escorting Sunder to Delhi from Jaipur, accused Rohtas Singh (A-3) had remarked that "SUNDER Tera Waqat Aa Gaya HAI". Later Sunder had protested when an attempt was made to show him to some of the witnesses whereupon the accused R. K. Sharma (A-2) had remarked "TERI Shanakhat Krane Se Hamara Kayamatlab Hai, Tujhe Toe Vaise Hi Paar KARNAHAI" and accused Amarjit Singh (A-5) clarified "TERISHANAKHAT Karne Kl Kaun Himmat KAREGA. Tujhethikane Lagaya JAIGA".

(13) On 25-9-1976, Sunder was remanded to Judicial custody and remained there till 27-10-1976. Sunder was subjected to test identification parade in several cases but could be identified in only one case and that too only by one witness. It is further the case of the prosecution that during judicial custody Sunder made four applications. to the courts repeating the complaint that he apprehended grave danger to his life. One of these applications was forwarded by the Chief Metropolitan Magistrate, Delhi, to D.I.G. Delhi. In due course, this was passed on to the Superintendent of Police (Vigilance). It was alleged that Shri P. S. Bhinder, D.I.G. had sent for the file in question from the office of the S.P. (Vig) and the same as well as copies of the applications sent to S. P. (E) and S. P. (N) and S. P. (Central)are not available now.

(14) On 29/10/1976, Sunder had shown willingness to get the service rifle of constable Sultan Singh who had been shot dead by him on 11/08/1976, recovered but later on he changed his, mind which resulted in his being subject to torture whereupon Sunder made a disclosure to Shri Gurcharan Singh, Superintendent of police, that arms and ammunition were kept concealed by him. Later on, in pursuance of the disclosure statement, some of the accused persons went to village Bishnoli (U.P.) and at the instance of Sunder, recovered certain arms and ammunition including the rifle of constable SultanSingh from the house of one Chandrej of village Bishnoli. No recovery memo was prepared and no report was made regarding the same in any police record or at the concerned police station. Instead. Cuircharan Singh, S.P. directed Inspector Rohtas Singh to show the recovery of these arms in his own jurisdiction and on 4-11-1976 these very arms and ammunition were falsely shown as having been recovered from Beriwala Bagh, Gharoli, in the jurisdiction of police station Farash Bazar. It is alleged that this recovery was falsely made in pursuance of disclosure statement purported to have been made by Sunder. Case F.I.R. No. 456 of 1976 was then got registered by Inspector Rohtas Singh at Police station, Farash Bazar.

(15) It is the further case of the prosecution that on 22-11-1976,Ram Chander Kaushik (A-13) falsely recorded ''a disclosure statement'' of S''under which was actually never made by him. On the basis of the said false disclosure statement, further police remand was taken up to 26-11-1976.

(16) It is then alleged that on 23-11-1976, S.I. Chatar Sen of Police Station, Seelampur had recovered various arms and ammunition from the house of one Mst. Khair-ul-Nisa. He brought these arms to the police station Seelampur whereupon D.S.P. R. K. Sharma and Inspector Amarjit Singh (A-2 and A-5) had also reached there. Later, S.P. Gurcharan Singh and D. S. P. Sukhdev Singh also reached The police station. All the four accused saw the said arms and S. P. Gurcharan Singh directed S. 1. Chatar Sen that the two rifles and cartridges may not be mentioned in the recovery memo and these were accordingly not shown in the recovery memo.

(17) Then comes the allegation of the prosecution regarding the evening of 24-11-1976.

(18) The prosecution allegations are that on 24-11-1976 in the evening .S.P. Gurcharan Singh and D.S.Ps. R. K. Sharma and Sukhdev Singh were driving to police station Shahdara via Jamuna Pushta Road. D.S.P. R. K. Sharma and D.S.P. Sukhdev Singh pointed out and showed Pontoon Bridge, Geeta Colony Cremation Ground and the Kacha Path leading to river Jamuna to S.P. Gurcharan Singhand at that time they were discussing about Sunder.

(19) Thereafter, the prosecution case is that on 24-11-1976 at about6.45 P.M. S.P. Gurcharan Singh held a meeting in the office room of accused R. K. Sharma which was attended by R. K. Sharma, SukhdevSingh, the two D.S.Ps. and the four Inspectors Rohtas Singh, Harkesh, Amarjit Singh all accused and the witness Dal Chand. At that time, a broad plan to kill Sunder was laid down, and S.P. Gurcharan Singh told them to take further details from Sukhdev Singh accused and to follow him strictly and to inform him immediately after the plan was executed .Later, Sukhdev Singh, D.S.P. held a meeting of the rest of the officers. Apart from the officers who had attended the earlier meeting, except the Superintendent of Police, it was also attended by accused S. R. Vohra, Rajeshwar Prasad Gautam, Rajinder Singh, Dharampal Singh, Ram Chander Kaushik, all sub-inspectors. The witness Dal Chand had also attended the second meeting. At the second meeting accused Rajeshwar Prasad, asked Sukhdev Singh D.S.P."SAHIB Marwa Toe Nahin DOGE", whereupon SukhdevSingh replied that there was nothing to worry because the plan had the clearance of D.I.G. Bhinder.

(20) It is the further case of the prosecution that after the first meeting the Superintendent of Police, Gurcharan Singh, asked his staff driver Hardwari Lal (witness) and Swantantrapal (Head Constable)Wireless Operator (also a witness) to report at 3 in the morning. The case of the prosecution is that in the second meeting arranged by Sukhdev Singh on the evening of 24-11-1976, the detailed plan to liquidate Sunder by drowning him in river Jamuna after showing a false recovery was explained by D.S.P. Sukhdev Singh.

(21) The prosecution case now is that in pursuance of the agreed plan at about 7.45 P.M. the Police party consisting of accused RajKumar Sharma, Rohtas Singh, Harkesh, Parsu Ram and SukhdevSingh, S. R. Vohra, Rajinder Singh, Dharam Pal Singh, Rajeshwar Prasad, and R. C. Kaushik (A-2, A-3, A-4, A-6-11 and A-13) and a few other police officials and a panch witness Kailash Chander Jain left police station Shahdara for Gias-ud-Din Tomb in Tughlakabad in three jeeps and a pick-up along with Sunder in handcuffs. Sunder was in the immediate physical custody of constable Parsu Ram with chain of the handcuffs hooked in his web belt. Before proceeding, a bag containing arms and ammunition which was proposed to be shown falsely as recovered from Gias-ud-Din Tomb was taken from the office-room of D.S.P. Raj Kumar and kept in the jeep in which SukhdevSingh, D.S.P. was traveling along with Kailash Chander Jain and others to the place. Before departure a false disclosure statement was recorded by Ram Chander Kaushik on the basis of which the aforesaid false recovery was planned to be shown.

(22) On reaching Tughlakabad, the bag containing arms and ammunition was taken to a place on the real of Gias-ud-Din Tomb and a false recovery of arms and ammunition was shown consisting of two rifles ,two hand-grenades and one pistol and some ammunition. The said country-made rifles were the same which were brought from Seelampur police station on the previous day from the house of Khairul-Nisa by S.I. Chatar Sen.

(23) It is further the case of the prosecution that even before the completion of the formalities of the alleged recovery, accused R. K. Sharma and Sukhdev Singh had paid a visit to police station Kalkaji to persuade S.H.O. police station Kalkaji to register a case about the recovery. After completing the formalities at the Tomb, the entire party including R. K. Sharma, Sukhdev Singh went to police station Kalkaji and a case was got registered under the Arms Act on the basis of false F.I.R. lodged by accused R. C. Kaushik.

(24) Now comes the crucial prosecution case. It is then alleged that at about I A.M. on 25-11-1976, the police party, except RamChander Kaushik (accused A-13) Inspector Dal Chand, Om Prakash, Police Photographer, and Kailash Chander Jain (public witness)left police station Kalkaji on return journey to Shahdara. They stopped on the way at an ''ashram'' and took tea and ''mathees''. On starting from the ''ashram'', the accused Harkesh shifted to the rear of the pick-up. After the vehicles had crossed Income Tax Officer Bridge, Sunder was overpowered by Sub-Inspectors S. R. Vohra, Rajeshwar Prasad Gautam, Rajindra Singh, Dharampal Singh and Inspector Harkesh. In the pick-up itself, the arms of Sunder were twisted to his back and then handcuffs were put on both the hands. His mouth and legs were tied with clothes. On reaching near Geeta Colony cremation ground, the head lights of the vehicles were put off and after getting clearance from Amarjit Singh who had already reached there with a party, the vehicles proceeded to the bank of the river. On reaching near the bank, Sunder in tied-up condition was taken out by Inspector Harkesh and four Sub-Inspectors, namely, S. R. Vohra, Rajeshwar Prasad Gauttam,Rajinder Singh and Dharampal Singh. Raj Kumar Sharma, Dsp also stepped into the water to ensure that Sunder was kept submerged in the water until he was dead.

(25) It is the further case of the prosecution that accused RohtasSingh, Amarjit Singh and Dsp Sukhdev Singh had stood on the bank of the river watching Sunder being killed by drowning in the river. At that time, one Gopal Dass, Assistant Sub-Inspector was also present who had been brought by Amarjit Singh, Inspector and Sho of police station Shahdara. Gopal Dass had been brought without disclosing him the real purpose but he stood on the bank of the river watching Sunder being killed in the aforesaid fashion.

(26) It was thus alleged that Sunder was killed on the fateful night of 24th/ 25/11/1976 at about 0215 hours by drowning him forcibly in river Jamuna.

(27) After Sunder was killed his dead body was taken out of the water and kept back in the pick-up by Inspector Harkesh, assisted by Sub-Inspectors S. R. vohra, Rajeshwar Prasad Gautam, Rajinder Singhand Dharampal Singh. The pick-up was then driven to a place near the Pontoon Bridge and the body was again taken out. In the meanwhile, a rope was tied to the loose end of the chain of the handcuffs both of which were now put on the right hand of the deceased. The body was then taken to the river-bank and dropped into the water and kept submerged .While at Pontoon Bridge, accused Amarjit Singh had, in the meanwhile, broken two bulbs in order to darken the area.

(28) The pick-up was then asked to go on Pushta where a puncture was made by D.S.P. Sukhdev Singh in its left rear wheel by driving a nail into it. It is then alleged that then a drama to falsely show the escape of Sunder was staged as chalked out earlier. Constable ParsuRam rolled down from the Pushta. Accused Rajeshwar Prasad Gautam, Rajinder Singh and Dharampal Singh then ran towards Jamuna crying "BHAG Gaya Pakro PAKRO". Accused Rajeshwar Prasad Gautam fire two shots and accused Rohtas Singh and Dsp Sukhdev Singh then exchanged false messages on wireless sets. A little later, S.P. Gur-charan Singh arrived on Jamuna Pushta. On reaching Jamuna Pushta, S. P. Gurcharan Singh asked Sukhdev Singh: "KAM Theek HOGAYA" whereupon Dsp Sukhdev Singh informed S. P. Gurcharan Singh "BILKUL Theek Ho GAYA". S.P. Gurcharan Singh Along with Sukhdev Singh then walked towards Pontoon Bridge and went right up to the place where Inspector Harkesh was sitting holding the rope tied to the chain of the handcuffs of Sunder to hold the body. It is alleged that thereafter D.I.G. Bhinder also reached there. He also walked up to that place while talking to S.P. Gurcharan Singh and DSP Sukhdev Singh. D.I.G. Bhinder is alleged to have passed the remarks "WELL Done Chhuti HUI".

(29) After the above, S.P. Gurcharan Singh and D.I.G. Bhinder went to the office of the S.P. After reaching the office, S.P. Gurcharan Singh arranged for Rs. 1,000 for giving reward to constable Parsu Ramand Rajeshwar Prasad (A-6 and A-9). It is alleged that this amount was arranged by Dev Dutt, Reader to S.P. Gurcharan Singh.

(30) Toofan scheme was enforced at 0310 hours by D.I.G. Bhinder. It is the prosecution case that in spite of Toofan scheme being enforced, some police officials of P. S. Seelampur on that night were not allowed to go for patrolling and were asked to stand by until summoned.

(31) The body of Sunder was alleged to have been recovered at6.30 A.M. and was taken to the Irwin Hospital ostensibly for treatments if he was alive. The doctor, however, declared him dead.

(32) Along with the challan, the prosecution has filed numerous documents as well as a list of 211 witnesses.

(33) Shorn of the details, of the actual alleged murder, the prosecution has cited as many as six eye witnesses. They are A.S.I. GopalDass, constable Dharam Pal, constable Dharam Singh, driver Jagbir Singh, driver Surinder Singh and driver Sehdev Singh.

(34) Regarding the two meetings in the room of Raj Kumar Sharma, D.S.P., the prosecution has cited Inspector Dal Chand, constable DharamSingh, Dharampal Singh and Kailash Chand Jain, a panch witness.

(35) The prosecution also relies, in support of its case, on the postmortem report as well as the statement of Dr. Vishnu Kumar recorded during ;preliminary inquiry as well as u/s 161 Criminal Procedure Code . and particularly places reliance on the following :

(1) No water in the stomach;(2) absence of froth around mouth and nose;(3) bruised right upper jaw gum-blood tinged fluid from mouth or nose;(4) sand in conjunctival sacs on both sides of eyes;(5) no water in intestines either; (6) injuries by way of abrasions on (i) right shoulder (ii) on upper back part of trunk in midline and (iii) on upper front part of chest above left nipple;(7) sand particles in upper part of tracheas ;(8) lungs very much inflated ;(9) heart nothing abnormal.

(36) Besides the aforesaid eye witnesses, the prosecution also relies on the statement of wireless operator, namely. Head Constable Swantantra Pal. The prosecution also relies upon the statement of ManoharLal, a panch witness, who was also examined during preliminary inquiry and also after recording of F.I.R. and according to whom his signatures were taken on recovery memos without anything being recovered. The prosecution also relies on the statement of Tribhuvan Nath, Chowkidar, about the breaking of ''the bulbs on the night of the alleged incident. The prosecution also relies on the statement of Dev Dutt, Reader of the S.P. who deposes during investigation about the collection of money on ''the night of the incident for payment to accused Parsu Ram and Rajeshwar Prasad Gautam.

(37) The prosecution has also cited D.I.G. Zutshi in respect of the alleged planned encounter during June, 1976. The prosecution also relies upon the statement of Senior Superintendent of Police Tek Chand in that connection. Besides, it relies upon the recoveries made from the house of Shrimati Khair-ul-Nisa and the statement of Sub-Inspector .Chatar Sen.

(38) The prosecution also relies upon the statement of Om Prakash, Reader to D.I.G. in respect of the file of complaints of Sunder as to danger to his life from Delhi Police and the fact of the said file not being available now. In this respect, the prosecution also relies upon the statement of Balkishan, General Record Keeper.

(39) Mr. Poras Mehta who appeared on behalf of ''the prosecution submitted that in the present case, a serious charge of murder has been levelled against police officials including the status, amongst others, of Deputy Inspector General of Police, Superintendent of Police, Dy. Superintendent of Police, Inspectors and Sub-Inspectors. It was also submitted that on a charge of murder, the learned Sessions Judge went wrong in his entire approach while granting bail inasmuch as all that .the learned Sessions Judge at that stage was required to consider was whether the prosecution case prima fade discloses an offence of murder. It was also submitted that at the stage of consideration of bail applications, the learned Sessions Judge ought not to have considered the statements made by some of the witness during preliminary inquiry and then to see whether the statements of witnesses recorded u/s 161 and 164 Criminal Procedure Code . were contrary to the statements recorded in the preliminary inquiry. It was also submitted that on the facts of this case ,''there is no delay in recording the F.I.R.

(40) F.I.R. has named accused persons by staling that the death of Sunder "occurred in custody of the police party who accompanied him on the said night of 24/25-11-76" and when the column of the F.I.R. relating to name and address of ''the accused which states "some Delhi police personnels" is read in the light of the F.I.R. there is nothing vague about the identity of the accused persons. It was submitted ''that some of the eye witnesses have already stated during investigation that their statements to the contrary during preliminary inquiry were influenced due to the alleged pressure by some of ''the accused persons. It was thus submitted that there is grave danger of the material witnesses again being tampered with during trial and the learned Sessions Judge was not right, while granting bail, in observing in his order that" after all ,there is little to gain by tampering with the witnesses who have them selves already tampered with their evidence by making contradictory statements in respect of the same transaction". It is submitted that there is every likelihood of the accused misusing their position and freedom to tamper with the witnesses. It was submitted that though the learned Sessions Judge in paragraph 12 of his order, observed asunder:

"I am not prepared at this stage to dissect the evidence of these witnesses to find out which of their two versions is correct .All I would say is that regardless of the fact which particular statement out of the two contradictory statements made by a witness in the past is preferred by him in the trial for his deposition, such deposition cannot escape the taint of unreliability in some measure or the other. This character of the evidence collected by the Cbi cannot be ignored even While considering the question of bail"

yet, in fact, the learned Sessions Judge has dissected the evidence in appreciating the credibility of the'' witnesses. It is submitted that this approach was totally erroneous. It is also submitted that the learned Sessions Judge has taken the individual events and then concluded in paragraph 15 of his order that even if the recoveries are fictitious, the proceedings do not prove or disprove any fact in issue or relevant fact concerning the alleged incident. It was submitted that the learned Sessions Judge again while dealing with the incident of the two meetings'' has gone on really to dissect the evidence of the material witnesses in considering the same and while appreciating the statements recorded under sections 161 and 164 Criminal Procedure Code .

(41) Before considering the application for cancellation of bail Mr. D. C. Mathur, the learned counsel for the accused in Cr.M(M)456 of 1977 raised a preliminary objection that the present application is not maintainable in the High Court. This submission ran in this-fashion:

(42) It was submitted that u/s 439 Criminal Procedure Code . the powers of: granting bail have been conferred on the Court of Session and the High Court concurrently and, Therefore, if a Sessions Judge grants bail in exercise of powers u/s 439(1) Criminal Procedure Code ., no application for cancellation of the same is maintainable in the High Court u/s 439(2) of the Code.

(43) Mr. Poras Mehta, learned counsel on behalf of the Stacy .however, submitted that u/s 439(2) the High Court is entitled to direct that any person released on bail under Chapter Xxxiii be arrested and commit him to custody. The learned counsel fur the State thus submitted that ''there are no fetters under sub-section (2) of section 439 on the powers of the High Court or the Court of Session to cancel the bail.

(44) Learned counsel for the accused, countering this argument of the learned counsel for the State, then submitted that if this argument is taken to its logical conclusion, then even an order for bail granted by the High Court can be cancelled by the Court of Session. Learned counsel for the accused made a further submission that the High Court or the Court of Session while dealing with the bail application on a charge of murder is not supposed to look at or approach the question of grant of bail as contemplated by section 437(1) Criminal Procedure Code . It was submitted that earlier, under the old Code, u/s 497 The words "other ''than the High Court or the Court of Session" were not there and, Therefore, the High Court and the Court of Session under the old Code while granting or refusing the bail u/s 498used to consider the question as contemplated by Section 497(1) of the old Code. It was submitted that in view of the amended provisions, particularly in view of the provisions "other than the High Court or the Court of Session" in Section 437(1), the powers of the High Court and the Court of Session u/s 439(1) are totally independent of the approach which a magistrate is bound to adopt while considering an application for bail in respect of offence punishable with death or imprisonment for life. It was submitted that the introduction of the provisions like anticipatory bail u/s 438 Criminal Procedure Code . and the amendment of sec. 437(1) shows that so far as the High Court and the Court of Session are concerned, they have absolute powers to grant bail without any fetters even for an offence punishable with death or life imprisonment.

(45) For appreciating the arguments of the learned counsel for accused ,the relevant provisions of the old Code of Criminal Procedure as compared to the new Code regarding the grant or refusal of bail in non-bailable offences may now be noticed :Old Code :

497."(1) When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police-station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life :Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.(2)....................................(3).......................................(4)....................................(5) A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody.498. (1)............... -and the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail ,or that the bail required by a police-officer or Magistrate be reduced.(2) A High Court or Court of Session may cause Any person who has been admitted to bail under sub-section ( 1 )to be arrested and may commit him to custody".

New Code :

437."(1) When any person accused of or suspected of the commission of any non-bailable offence is arrested or detamed without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he maybe released on bail, but he shall not be so released it there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life: Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail: Provided further that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by theCourt.437. (2) if it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court ,on the execution by him of a bond without sureties for his appearance as hereinafter provided.(3) ....................................(4)...................................(5) Any Court which has released a person on bail under subsection (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody".439. (1)A High Court or Court of Session may direct-(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; .(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Sec. 439 of the new Code :Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of- an offence which is triable exclusively by the Court of Session or which, thought not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.(2) A High Court or Court of Session may direct that Any person who has been released on bail under this Chapter be arrested and commit him to custody."

(46) It will be noticed that u/s 497(5) of the old Code, the High Court or the Court of Session could cancel the bail granted by a magistrate u/s 497(1). The magistrate could also cancel the bail granted by him u/s 497(1). Under section498(2) where the High Court or the Court of Session had admitted a person to bail, the High Court or the Court of Session could cancel the bail. The powers of the High Court and the Court of Session u/s 498(1) were concurrent and were not statutorily made subject to section 497(1). Even u/s 498(2),the High Court could cancel a bail granted by a Court of Session or the High Court or the High Court could cancel a bail granted by itself .Where the Court of Session granted a bail, it would naturally cancel it if there were some new developments and in the same way where the High Court had granted a bail, it could cancel it if there were changed circumstances. Again, u/s 498(2) the High Court could cancel the bail granted by the Court of Session even without change of circumstances, if the High Court considered that the Court of Session ought not to have granted the bail. There were no fetters on the powers of the High Court or the Court of Session to grant bail u/s 498(1) in spite of the provisions of section 497(1).

(47) The position has, in no way, been changed by the amended provisions of Section 437(1) of the new Code. The addition of words "other than the High Court or Court of Session" in Section 437 is merely explanatory of the old law relating to powers of the High Court or the Court of Session. Under the old Code, u/s 498, the powers of the High. Court or the Court of Session for the grant of bail were not subject to section 497(1). In the new Code also, the provisions of section 439(1) and (2) are similar to the provisions of section 498(1) and (2) of the old Code in their scope and effect.

(48) u/s 439(2), High Court or the Court of Session can cancel a bail granted under Chapter Xxxiii of the new Code. u/s 439(1) the High Court and the Court of Session have concurrent powers to grant bail without any statutory fetters on their power .Like section 498 of the old Code, the Court of Session can cancel a bail granted by a magistrate or by itself and the High Court can also cancel a bail not only granted by the Court of Session but also by itself.

(49) When the Court of Session or the High Court cancels a bail ,it can cancel it on any ground if the Court feels that the bail ought not to have been granted. The Court of Session, like the High Court, could also cancel a bail in similar circumstances, or granted by the court of a magistrate. The Court of Session, again, could cancel a bail granted by itself but it would cancel it only If there are changed circumstances. In the same way, the High Court could also cancel a bail granted by itself if there is change of circumstances. The High Court can also cancel a bail granted by any subordinate court, including the Court of Session but the Court of Session cannot cancel a bail granted by the High Court except when there are changed circumstances. Merely because the Court of Session and the High Court u/s 439(1) have concurrent powers to grant bail, it cannot be said that under sub-section (2) of section 439, the High Court cannot cancel the bail granted by the Court of Session u/s 439(1).

(50) It is true that the Court of Session can not cancel a bail on the same circumstances, or without any change of circumstances in which the High Court granted the bail. The reason is simple : Our system of judicial administration is based on hierarchy of courts and, therefore ,without change of circumstances a subordinate court cannot cancel a bail granted by a superior court. But that cannot be said when the High Court is dealing with cancellation of bail granted by a subordinate court, including the Court of Session. I am, Therefore, of the considered opinion that so far as the power of grant or cancellation of bail by the High Court or the Court of Session is concerned ,the new Code has not made any change, whatsoever.

(51) Thus, the applications for cancellation of bail u/s 439(2), granted by the Court of Session u/s 439(1), are maintainable in the High Court.

(52) The new Code has also made no change In the principles for consideration of a bail application.

(53) The principles for the consideration of a bail application innon-bailable offences where there is a prima facie case for believing that the accused is guilty of an offence punishable with death or imprisonment for life whether by the High Court, the Court of Session or the Court of a Magistrate, are well settled. It is true that there are no statutory restrictions while granting bail u/s 439(1) but the High Court and the Court of Session in then-judicial discretion, while dealing with an offence where the sentence can be death or life imprisonment, have always to take into consideration various factors. Such factors have been illustrated by the Supreme Court in the case reported as the The State Vs. Captain Jagjit Singh, . The factors which are normally taken into account are :

(1) existence of a prima facie case;(2) nature and seriousness of the offence;(3) the character of the evidence;(4) circumstances which are peculiar to the accused;(5) a reasonable possibility of the presence of the accused not being secured at the trial;(6) reasonable, apprehension of the witnesses being tampered with; (7) larger interest of the public or the State and similar other considerations which arise when the court is asked for bail in non-bailable offence.

(54) It is true that u/s 439(1), like section 498 of the old Code, the powers of the High Court and the Court of Session in the matter of granting bail are very wide; even so where the offence is non-bailable various considerations, as those indicated above, have always been taken into account before the bail is granted in non bailable offence.

(55) It may also be mentioned that the time which the trial courtis likely to take is also a factor to be taken into account, but not disjunctively from the other factors mentioned earlier.

(56) It will be noticed from the resume of facts given earlier that out of the six eye witnesses cited regarding the alleged actual murder, ASI, Gopal Dass was examined under sections 161 and 164 Cr.PC and was not examined during preliminary inquiry. Out of the other five eye witnesses, Jagbir Singh and Surinder Singh were examined u/s 161 as well as on oath u/s 164 Cr.PC. IT is true that they were examined during the preliminary inquiry and during the preliminary inquiry they did not support the prosecution version but in their statements u/s 164 Criminal Procedure Code given on oath ,they have given reasons for not doing so earlier. The reason has been given on oath and the reason is in view of pressure being exercised by the accused R. K. Sharma or accused Harkesh.

(57) The other eye witnesses, Dharam Pal constable, DharamSingh constable and Sahdev Singh driver, in their statements u/s 161 Criminal Procedure Code have also given reasons why they did not support the prosecution during the preliminary inquiry.

(58) Regarding the case of the prosecution about the alleged bogus recovery proceedings staged on the night of 24/11/1976, there is the statement of ''panch'' witness fully supporting the prosecution case during preliminary inquiry as well as during investigation. The other ''panch'' witness Kailash Chand Jain has been examined u/s 164 Criminal Procedure Code on oath as well and he has given the reason for not supporting the prosecution case during the preliminary inquiry in view of pressure being exercised by Inspector Rohtas Singh. In his statement u/s 164 Cr.PC, he fully supported the prosecution version.

(59) In a criminal trial, the evidence consists only of the statements given on oath before the court who tries the case. the accused are ordinarily entitled to challenge the testimony of witnesses examined in court with reference to the statements said to have been made by them before the investigating officers. The statements made by witnesses earlier are a valuable material for testing the veracity of the witnesses examined in court. It is for the trial court to examine which version to accept and whether sufficient reasons have been given for accepting the version given in the court as opposed to the version given during investigation. Merely because some of witnesses examined during preliminary inquiry do not support the prosecution case fully does not mean that there was no prima facie case.

(60) The expression "prima facie" case simply means that there should be evidence which, if believed, is liable to result in conviction. At the stage of bail, the court is not concerned with the truthfulness or otherwise of the deposition of the witnesses at earlier stage during investigation or inquiry.

(61) All factors have to be weighed and balanced. It is clear from the statements of some of the witnesses recorded on oath u/s 164 of the Code before the magistrate that pressure was brought to bear on them for not fully supporting the prosecution case during preliminary inquiry. The reasonable apprehension of the witnesses being tampered with cannot thus be ruled out. Nor can it be said that there was no prima facie case of the prosecution for the serious charge of murder. There could have been no charge more serious than that. At the stage of bail, it is not the province of the court to minutely appreciate the evidence or dissect the evidence vis-a-vis the alleged statements made by the witnesses earlier to the contrary. That is the province of the court who conducts trial.

(62) The learned Sessions Judge though rightly observed in his order that "this is not the stage to dissect the evidence", yet fell into the error of dissecting it. Again, the approach appears to be as if grant of bail was the rule and the prosecution had to show reasons for with holding the bail. This approach was totally against settled principles of consideration of bail applications in serious offences like murder.

(63) Again, the observations of the learned Sessions Judge that even at the stage of filing F.I.R. the State was not able to make up its mind as to who the accused are is not called for. The observation that the depositions of the eye witnesses daring investigaition "cannot escape the taint of unreliability in some measure or the other" was net necessary .It will depend on the expiation of the particular witness given at the trial whether the court believes it or not.

(64) The observations regarding the tampering of witnesses, already noticed earlier, also discloses the total fallacious approach. Some of the witnesses have given reasons on oath of the pressure being broughton them by some of the accused and of serious consequences ensuing if they did not heed to the pressure.

(65) The factor of delay in recording the F.I.R. is again a matter for consideration but not at this stage. It will be for the prosecution to explain it during trial.

(66) The observations about the prosecution case regarding taking out of the deceased from the ''havalat'' and staging a false recovery as made in paragraph 15 of the order are again not understandable. The prosecution case is that the deceased was taken out of the ''havalat on the excuse of false recovery to enable them to execute their plan for committing the alleged offence.

(67) Again, the observations about Parsu Ram in paragraph 16are not understood. The observations regarding the witnesses DalChand and Gopal Dass are also not understandable. This was not the stage for appreciating their evidence.

(68) The learned Sessions Judge was again not right in considering the bail applications and passing one of the impugned orders dated 1/08/1977 a few days before the filing of the charge-sheet. If the charge-sheet had been filed, the learned Sessions Judge could have then examined the whole matter in proper perspective.

(69) Mr. Mulla, learned counsel for the accused, however, submitted that the law regarding bail has undergone vital change during the last few years and the Court should consider the human factors and grant bail even if the prosecution shows the existence of a prima facie case. It was further submitted that the defense version is consistent with the medical evidence and particularly the report of the post-mortem.

(70) Mr. Mathur, who appeared along with Mr. Mulla, took me through various passages in Modi''s Medical Jurisprudence, Glalster''s Medical Jurisprudence and a book on Forensic Pathology by Abdullah Fatteh and Taylor''s Medical Jurisprudence, and tried to submit that the post mortem report is consistent with the defense version that it was a case of accidental drowning.

(71) It was also submitted that Sunder was a desperate criminal. Large number of cases were pending against him. He had shot constable Sultan Singh and, Therefore, he was making false allegation against Delhi Police as he had realised that Delhi police would show hint no quarters.

(72) Learned counsel also referred to the fact that the eye witness opal Dass could not have been present at the spot in view of certain entries in the daily diary of the police station concerned. The learned counsel also assailed the statement of Swatantra Pal recorded during investigation as being inconsistent with the testimony of the other witnesses examined during investigation.

(73) Learned counsel for the accused also cited some cases where during trial of a murder case, a particular accused person had been enlarged on bail.

(74) It may be that the defense version is consistent with the medical evidence but that is not the correct approach. At this stage, the court is really not concerned with the defense version unless the prosecution is totally inconsistent with the medical evidence.

(75) I am also not in agreement with the learned counsel that human factors had to be taken into account. The human factors which are well recognised relate to the age of the accused and/or the accused being a female or such similar circumstances. Merely because the accused are government officials and that too police officials is not such a human factor as to be very relevant for the grant of bail.

(76) Again, it will not be correct for the Court to go into the nicetics of reliability of the statement of Gopal Dass or the inconsistencies in the statement of Swatantra Pal as compared to the testimony of the other witnesses examined during investigation. If I go into those matters in detail, I will be falling into the same error which the learned Sessions Judge committed.

(77) Again, the instances where the accused in murder cases were enlarged on bail are of no avail. Every case depends on the peculiar facts and circumstances disclosed in it. One case is not a precedent for the other. The question which should be looked into at this stage is only whether certain well recognised factors which govern the granting or refusal of bail have been followed or not, and after following them what would be the result.

(78) Whether it is the Court of Session or the High Court, it can not ignore the prima fade case for the prosecution. The consideration of a prima fade case is a must.

(79) Mr. Sethi, who appeared on behalf of the accused in Cr. (M)474 of 1977, adopted the arguments of Mr. Mulla and also submitted that this Court should not interfere with the discretion exercised by the learned Sessions Judge.

(80) Considering the nature of the offence, character of the evidence including the fact that some of the witnesses during preliminary inquiry did not fully support the prosecution case; the reasonable apprehension of witnesses being tampered with and all other factors relevant for consideration while considering the application for grantor refusal of bail in a non-bailable offence punishable with death or imprisonment for life, I have no option but to cancel the bail. I am of the considered view that the learned Sessions Judge did not exercise his judicial discretion on relevant well recognised principles and factors which ought to have been considered by him.

(81) I would, Therefore, accept the applications of the State u/s 439(2) Cr.PC. The orders dated 1-8-1977 and 11-8-1977passed by the learned Sessions Judge are set aside, the sureties and the bail bonds furnished by the accused-respondent are cancelled with ?direction that they be taken into custody forthwith.

(82) I may also observe that the learned trial court should not be,in any way, influenced one way or the other during trial by any of the observations made hereinabove. These observations are limited only for the purpose of these applications.