State of Haryana vs Gurmesh Bishnoi

V.K. Jhanji, J.

In F.I.R. No. 216 dated 26.4.1994, P.S. Civil Lines, Hissar, under Sections 302/201, Indian Penal Code, Sessions Judge, Hissar, refused to grant concession of prearrest bail to Dr. Balbir Singh, but gave this concession to the respondents namely Gumesh Bishnoi, brother of Dr. Balbir Singh and Ashok Kumar son of Dr. Balbir Singh, subject to the condition that they would join investigation in the case as and when called and shall comply with the other conditions as mentioned in subsection (2) of Section 438 Cr.P.C. Feeling aggrieved of the order, the State has filed this petition under Section 439(2) Cr.P.C. praying that the impugned order be set aside and prearrest bail allowed to the respondents be canceled.

The facts which have given rise to this petition are as under :

Gurmesh Bishnoi, respondent No. 1 herein, who retired as Chairman of Haryana Public Service Commission is, by profession, an Advocate. He alongwith his brother, Dr. Balbir Singh and Ashok Kumar, respondent No. 2 herein, are residing in House No. 101, Sector 15A, Hissar. In the early hours of morning on 25.4.1994, one Ram Dial, aged 16/17 years, employed as servant, was found dead in the house of the respondents. According to the averments made in the petition, Dr. Balbir Singh on the advice of his brother, Gurmesh Bishnoi, went to Adampur to meet his brotherinlaw Ram Kumar, who actually had got employed the deceased as a servant in the house of respondents. At Adampur, Dr. Balbir Singh and Ram Kumar contacted Raghu Nath, brother of the deceased and informed him with regard to death of his brother. Dr. Balbir Singh and Ram Kumar brought Raghu Nath by car to Hissar. The police was not informed and the deadbody was taken to the General Hospital. The Medical Officer on duty informed the police. The police then conducted inquest proceedings. Raghu Nath, brother of the deceased, did not suspect any foul play at that time and stated that Ram Dial has died either by consuming some poison or due to bite by some poisonous animal. The deadbody was subjected to postmortem examination, when it revealed a number of abrasions and the cause of death was found to be suffocation (smothering) which was antemortem in nature and sufficient to cause death in the ordinary course. Following is the extract of the postmortem report :

"5/RJ, KB/94.

POST MORTEM REPORT

Name : Ram Dyal

Father''s name : Surat Ram

Caste : Bishnoi

Residence : Rano Sar Kalan P.S. Dhormina

Sex : M.

Age : About 16 years.

Date : 25.4.1994.

Distt. Hissar.

Body brought by : Ranbir Singh C.N. 1775.

Body identified by : Raghu Nath S/o Surta Ram Balbir s/o Khyali Ram

101, Sector 15A, Hissar.

Where brought 101, Sector 15A,

Village Thana Distt. G.H. Hissar.

Death : On 25.4.1994 at 10.30 A.M.

Examination of Body : 25.4.94 at 2.00 p.m.

Brought Dead.

External Appearance :

(1) Length of body : 5''

(2) Mark at Ligature on None.

Neck and Jts. Section etc. :

(3) Condition of subject stout emaciated decomposed etc. clothing : Body of a midbuilt and nourished male. Wearing one shirt, Baniyan, a pain at trousers; P.M. staring is that on Ex.prudent. Parts, f. Mouth closeted. Pupils. S.Mates and conjunctive is congested. Brownish coloured Discharge and hair (broken) Sticking at angles and mouth that Spnireter, is relaxed. Lower part of emal, canal is visible. Clotted blood that around amt. and near carytuins Cyanos is in that in eyes balls (all) Face and neck is congested. face is stodded blood.

5/RJ/KB/94.

HCRANIUM AND SPINAL CORD :

N.B. The spinal cord need not be examined unless any indication at disease or injury exists.

Scalp skull and vertebra. Brain Matter

Membranes Brain Spinal Cord.

III. THORAX External injuries.

(1) Wall ribs and Cartlidges (Healthy) (1) Multiple abrasions thi. on scalp, on scalp on parietal and occipital region Brownish red Blood is clotted. Hair are absent from root. From the respective areas, on dissection, the s/e tissue is permeat etc. i.e. Blood.

(2) Pleurae (Congested and healthy) (2) Multiple abrasions that on Lt. upper arm on pesterulat aspect ''c'' clotted. Brownish red blood on dissection Th. tissue is permeated C. blood.

(3) Larynx and tracheae. Congested and health (3) Abrasions that in a semilunar pattern on Lt. upper arm on Pest. aspect. on Dissection thi. tissue is permeated. ''cbed.

(4) Right lung Congested and healthy. (4) Abrasions that in a semilower shape on lower part at back. On dissection the tissue. is Permeated ''c bid. bid.

(5) Left lung. (Petectnal hges that in both lungs.

(6) Pericardium Heart Large vessels. (Congested and healthy.)

5/RJ./KB/94. IV ABDOMEN.

(1) Healthy

(2) Peritoneum Congested and healthy.

(3) Mouth Pharynx and Oesophagus. Congested. Reddish brown discharge coming out of both angles at mouth.

(4) Stomach and its contents. Empty.

(5) Small intestines and their contents Contains semi digested food. Partiches.

(6) Large intestines and their contents. Contain facial matter.

(7) Spleen. Congested and healthy.

(8) Kidneys.

(9) Bladder. Empty.

(10) Liver.

(11) Organs at generation External and. NAD (As described)

V. MUSCLES, BONES, JOINTS :

Injury Diease or Deformity As described.

VI REMARKS BY MEDICAL OFFICER :

The cause of death in our opinion is death due to suffocation is antemortem in nature, sufficient to cause death in an ordinary course of nature.

Sd/ Dr. Rama Jain,

M.O.

G.H. Hissar.

25/4.

Sd/ Dr. KVL Bhushan

M.O. G.H. Hissar,

25/4.

Handed over to police :

(1) Dead body after doing PME. Well stitched ''c'' its belongings.

(2) C.C. at PMR N. 5/RJ/KB/94.

(3) P.P. No. (1) to (16) duly signed by me.

Sd/ Ranbir Singh 1775

(in Hindi)

''c'' in few minutes.

''c'' in 24 hrs."

Initially, the police had not registered any case and only a report was lodged in the daily diary. In this report, recorded at the instance of Raghu Nath, it was stated that Dr. Balbir Singh had gone to Adampur to inform him that Ram Dial had died either after taking poison or having been bitten by some poisonous animal/insect. However, on receipt of the report regarding cause of death, First Information Report was registered on 26.4.1994. During investigation of the case, police recovered blood stained earth, grass and bunch of hair from the spot. The deadbody of Ram Dial, after postmortem examination, was taken to his native place and buried, as he belonged to Bisnoi community who bury their dead. The deadbody was exhumed on 29.4.1994 in the presence of Sub Divisional Magistrate, and the clothes of the deceased and Viscera were taken, sealed and sent to the Chemical Examiner whose report revealed negative test for common poison. Dr. Balbir Singh, his sonAshok Kumar (respondent No. 2 herein) and his brother, Gurmesh Bishnoi (respondent No. 1 herein) apprehending their arrest in the aforesaid F.I.R. moved an application for prearrest bail before the Sessions Judge, Hissar, who declined the concession of bail to Dr. Baljit Singh, but allowed this concession to the respondents. Dr. Balbir Singh feeling aggrieved of this order, filed Cr. Misc. Petition No. 13799M of 1994 and this Court on 19.9.1994 affirmed the order of Addl. Sessions Judge declining concession of bail to Dr. Balbir Singh. The present petition has been filed by the State, praying for cancellation of bail allowed to the respondents. In opposition to the prayer made by the State for cancellation of bail, respondent No. 1 in his written statement has stated that the present Chief Minister of Haryana has been inimically disposed of towards him, his relatives, including his brother, Dr. Balbir Singh. He has further stated that in March, 1990, he was appointed as a member of the Haryana Public Service Commission, whereafter in August, 1984, he became the Chairman of the said Commission and retired as such after a six year term in the month of August, 1990. According to him, the Chief Minister of Haryana had become totally hostile and revengeful towards him because he had carried out his functions as Chairman of the Haryana Public Service Commission, independently and without any fear or favour, firmly resisted all political interference and earned wrath and displeasure of the Chief Minister who treated it as an act of treachery and betrayal. Respondent No. 1 has given the details of the cases registered against him between the period from 27.10.1991 to 9.11.1991. He has also made a mention that on two different occasions, vide orders dated 25.7.1991 and 27.4.1992 passed in Criminal Misc. No. 8178M of 1991 and Criminal Misc. No. 3666M of 1992 respectively, this Court allowed bail to him in the cases registered against him. Reference has also been made to his illegal detention as also that of his brother, Dr. Balbir Singh and filing of Habeas Corpus petition and the enquiry marked thereon to the District and Sessions Judge on 13.12.1991. Thus, according to him, he is being falsely implicated in the present case. However, in the written statement, he has admitted that he has been residing in the house where the servant was found dead. As regards taking of the body to the hospital and not informing the police, he has averred that "as the cause of death of Ram Dial was not known to Dr. Balbir Singh or to Ram Kumar of Raghunath, it was a matter of rational guesswork by lay persons. Apparently the body did not bear any injuries which were homicidal or serious or grievous. It was lying in the open lawn accessible to other also, particularly at the odd hours. Hence it shall be unjust to smell a rat, if any one opined that the death was due to poisoning. It is no coincidence that Raghunath, a close relation of the deceased himself verified the facts at the spot and thereafter made the statement in the inquest referred to in this paragraph. The socalled injuries bear no nexus with the death or with the alleged cause of death, i.e. smothering. These injuries are rather consistent with the version given by Raghunath in the first place. These could also be identified as injuries by mistake by a fresh doctor, though the same could otherwise be the result of antbites. In any case, these superficial abrasions do not advance the case of the prosecution at all."

Mr. Sibal, appearing for the State, contended that grant of anticipatory bail to the respondents is totally unjustified. According to him, Dr. Balbir Singh is suffering from polio disease and his one leg and one hand are very seriously affected by the disease. Further, involvement of more than one person cannot be ruled out and the death must have been caused not only by Dr. Balbir Singh, but other family members namely Gurmesh Bishnoi and Ashok Kumar. He took me through the relevant material on record and placed reliance upon a decision of Supreme Court in Pokar Ram v. State of Rajasthan, AIR 1985 SC 969.

Mr. Cheema, counsel for the respondents, opposing the prayer made on behalf of the State, contended that according to the case of the prosecution, Ram Dial was employed by Dr. Balbir Singh and it was only Dr. Balbir Singh who had gone to Adampur to bring Raghu Nath, brother of the deceased, and it was he who had taken the deadbody to the hospital and joined inquest and, therefore, involvement of the respondents is only to harass them. According to him, the State has not been able to make out a case for cancellation of bail. He further contended that at this stage, with certainty, it cannot be opined that the death was by smothering; it could be by poisoning. He also contended that effort of the Investigating Agency is to book the respondents and not to investigate the case in an impartial manner. He placed reliance upon the judgments in Gurbaksh Singh and another v. State of Punjab, AIR 1980 SC 1632, Surrinder Kumar and others v. State of Haryana, 1990(1) RCR 2 (P&H) and Bhopal Singh @ Bholi v. State of Punjab, 1990(3) RCR 50, for the contention that cancellation of bail has to be made on very compelling reasons. He cited a judgment of the Supreme Court in State (Delhi Administration) v. Sanjay Gandhi, AIR 1978 SC 961.

The scope of Section 438, Code of Criminal Procedure, has been considered by the Constitution Bench of Apex Court in Gurbaksh Singh''s case (supra), wherein at page 1640 of the decision in that case, it was observed that "the legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. That is why, departing from the terms of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of Sessions "may if it thinks fit" direct that the applicant be released on bail. Subsection (2) of Section 438 is a further and clearer manifestation of the same legislative intent to confer a wide discretionary power to grant anticipatory bail. It provides that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail, "may include such conditions in such directions in the light of the facts of the particular case, as it may think fit," including the conditions which are set out in Clauses (i) to (iv) of subsection (2)". Again, at page 1647, the Supreme Court observed that "it is thus, clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail." In case Tejinder Pal Mann v. State of Haryana, 1988 CC Cases (H.C.) 557, this Court allowed prearrest bail, when 13 persons on prosecution side had received injuries, while 7 persons were injured on the side of the petitioner therein, by weapons other than firearms. In Surinder Kumar''s case (supra), prearrest bail was allowed on the ground that political vendetta could not be ruled out when allegation of the accused therein was that he was opposed to the ruling party. In Bhopal Singh''s case (supra), prearrest bail in murder case was allowed. In Pokar Ram''s case (supra), it was observed by the Supreme Court that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress. In case Kiran Devi v. State of Rajasthan and another, 1988 SCC (Criminal) 106, their Lordships of the Supreme Court have expressed the opinion that anticipatory bail should not have been granted in the murder case when the investigation was still incomplete and the proper course to adopt was to leave it to the trial Court to do the needful if and when the person concerned was arrested in the light of record available at that point of time. Thus, from a resume of all these judgments, it now stands settled that the High Court has the power to grant prearrest bail even in murder cases, but discretion has to be exercised only in exceptional cases and that too when some very compelling circumstances are made out, for grant of bail, by the person accused of committing murder. Applying the observations made in the abovementioned decisions, cited on both side to the facts of the case in hand, I am of the view that this is not a case where concession of prearrest bail should have been allowed to the respondents. Neither the present case is that of political rivalry, nor I am impressed with the argument that the accusations have been brought against the respondents at the behest of the Chief Minister with a view to cause damage to their political life in the eyes of public. It is not the case of the respondents that servant was not employed or found dead in their house. The deadbody of Ram Dial was recovered from the outerlawn of the house where respondents are residing. Postmortem has revealed that Ram Dial died of asphyxia and suffocation as a result of smothering. There were multiple abrasions on the scalp, left upperarm, lower part of the back, besides hair absent from root, meaning thereby that more than one person was involved in the commission of crime. The averment of the State in para 6 of the petition that Dr. Balbir Singh is suffering from polio and his one hand and one leg are seriously affected by this disease, has not been denied by respondent No. 1. Ram Dial, servant, died in mysterious circumstances, an unnatural death. Instead of informing the police or taking the deadbody to the hospital, Dr. Balbir Singh brother of respondent No. 1, went to Adampur, a distance of about 35 kilometers from the place of incident, to get Raghu Nath brother of the deceased, and it was only thereafter that the deadbody was taken to the hospital and that too on the asking of Raghu Nath. The police came into picture only on receipt of information from Medical Officer on duty. Initially, an effort was to make it appear a case of poisoning and mislead investigation. The story of poisoning has been found to be wrong. There is no explanation forthcoming from the respondents as to how and in what circumstances the servant died. The motive is yet to be established and more so, respondents and Dr. Balbir Singh are the only male members residing in the house where the servant was found dead. In these circumstances, prosecution is justified in seeking custody of the respondents and that too, when investigation is in progress. In law, it makes no difference that respondent No. 1, at one point of time, was Chairman of Haryana Public Service Commission. The status, life and affluence or otherwise, are hardly relevant considerations in murder cases, as has been held by the Supreme Court in Pokar Ram''s case (supra).

Counsel for the respondents lastly contended that the Supreme Court in Sanjay Gandhi''s case (supra) and Bhagirath Singh Judeja v. State of Gujarat, AIR 1984 SC 372, has observed that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail, even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should not be detained by way of punishment, but whether his presence would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tempering with evidence. In my view, these observations are not relevant in this case as these were made in the context of the right of the Court to cancel bail granted to an accused under Sections 437 and 439, Cr.P.C. and not under Section 438, Cr.P.C.

Consequently, this petition stands allowed and order of Sessions Judge, Hissar, allowing prearrest bail to the respondents is quashed. Respondents shall now be committed to custody.

I have no doubt that if the respondents are taken into custody for investigation and interrogation, the police will conduct the same in a civilised and legally permissible way and not expose the respondents to any indignity, torture and harassment.