Subhash Bagri vs State of Haryana

P.K. Jain, J.

Subhash Bagri, the petitioner has approached this Court under Section 439 of the Code of Criminal Procedure (hereinafter referred to as the Code) seeking bail in a case bearing F.I.R. No. RC28(s)/94CHS registered under Section 364 I.P.C. by the Central Bureau of Investigation, at Chandigarh. Offences punishable under Sections 302/346/201 read with Section 120B I.P.C. have been added later on in view of the order dated October 1, 1997 passed by the Sessions Judge, Ambala.

The facts necessary for the disposal of this petition are that Smt. Sushil Kumari was posted as Junior Lecturer in the Government Senior Secondary Girls School, Hissar. For the Board examination of 10+2 Standard to be held in March, 1993, she was deployed to perform the duties of an invigilator.

Smt. Santosh Kumari was one of the candidates to appear in the said examination at a centre where Sushil Kumari was deployed as invigilator. Constable Mukesh Kumar, husband of Santosh Kumari and a gunman of Shri Dhura Ram son of Manphool Singh, a nephew of the then Chief Minister Haryana, approached Smt. Sushil Kumari with a request to allow his wife Santosh Kumari to copy in the examination hall which request was not acceded to by Smt. Sushil Kumari and instead she rebuked him. Similarly one Ms. Raj Kumari alias Raju daughter of Shri K.K. Sharma, the then D.S.P. Hansi, was also an examinee. Salender Bishnoi also requested Smt. Sushil Kumari to help Raj Kumari in copying in the examination hall which request was turned down and Sushil Kumari took a stiff stand both against Mukesh Kumar and Salender Bishnoi. According to the investigation, Salender Bishnoi had illicit relations with the said Raj Kumari. Salender Bishnoi made another attempt to approach Smt. Sushila Kumari through the petitioner on 30.4.1993 when there was a farewell party of Shri Santosh Sharma in the school but in vain. An altercation had taken place between Smt. Sushil Kumari and Salender Bishnoi. Subhash Bagri is stated to have asked Sushil Kumari to accompany him and his wife to Delhi but she refused.

It is alleged that during night of 30.11.1993, the petitioner alongwith Salender Bishnoi, Kuldip Godara, Joginder Tiger and Constable Mukesh Kumar assembled in a building known as `Raj Mahal'' at Hissar and hatched a conspiracy for abduction of Smt. Sushil Kumari. In pursuance of the said conspiracy, these five persons along with one another who is alleged to be a friend of the petitioner reached under the bridge on 1.5.1994 at 5.30 A.M., in a Maruti van of red colour belonging to some Bania of Hissar. The vehicle was being driven by Joginder Tiger. When Smt. Sushil Kumari was entering the school gate, she was called through a girl student. When she came out, she was pushed into the vehicle and taken to the building known as `Raj Mahal'' and kept there upto the morning of 3.5.1993. On that day at about 8.00 or 8.30 A.M. she was made to sit in the van on the pretext of releasing her. This time, Constable Mukesh Kumar is stated to be driving the vehicle towards Sirsa road. Joginder Tiger was sitting besides him on the front seat. It is alleged that the petitioner strangulated Smt. Sushil Kumari with her scarf. Salender, Kuldip, and the friend of the petitioner helped the petitioner in strangulating Sushil Kumari. The dead body of Sushil Kumari was thrown in Badopal canal which is 37/38 kilometres away from Hissar.

It may be clarified that when Smt. Sushil Kumari did not return home after her duty hours on 1.5.1993, search was made for her. Her father Gaje Singh moved an application (Annexure P1) to the Station House Officer, Police Station Civil Lines, Hissar suspecting that his daughter Sushil Kumari might have been abducted as she was wearing gold ornaments or she had objected to the copying in the examination hall where she was a supervisor. D.D. entry was recorded on the basis of the said application. However, on 8.5.1993, Shri S.S. Saran, the husband of the sister of Sushil Kumari moved another application to the Senior Superintendent of Police, Hissar on the basis of which F.I.R. No. 181 dated 8.5.1993 was registered at Police Station Civil Lines, Hissar for an offence under Section 364 I.P.C. Since the State police could not successfully solve the case, the Government of Haryana, vide letters dated 22.7.1993 and 11.8.1993 requested the Government of India to entrust the investigation to the Central Bureau of Investigation. The Government of India asked the Central Bureau of Investigation vide letter dated 4.3.1994 to take up the investigation of the case. Consequently, case No. RC28(s)/94CHG under Section 364 I.P.C. was registered by Central Bureau of Investigation on 7.7.1994. In the meanwhile, Shri R.S. Dhull, an Advocate filed a petition before the apex Court praying for expeditious investigation and necessary action. Their Lordships of the Supreme Court issued directions vide orders dated 19.9.1995 to the Central Bureau of Investigation to complete the investigation within two months and to submit a report. A report was submitted accordingly by the Central Bureau of Investigation.

During investigation Constable Mukesh Kumar was arrested. During interrogation Mukesh Kumar made a disclosure statement to the Central Bureau of Investigation. Thereafter Constable Mukesh Kumar was produced before the SubJudicial Magistrate, C.B.I. (Punjab) at Patiala, and he made a confessional statement purported to have been recorded under Section 164 of the Code, the gist of which has already been recorded above. On the basis of this confessional statement Salender Kumar, Kuldeep Godara, Joginder Tiger and Mukesh Kumar were interrogated. Joginder Tiger committed suicide during the course of investigation. It was revealed that Salender Kumar Bishnoi and Kuldip Godara were friends. Mukesh Kumar and Joginder Tiger were also found to be friends but no evidence came to light to establish any link of the petitioner with the remaining persons, nor the name of the sixth person as disclosed by Constable Mukesh could be identified or traced. The vehicle stated to have been used in the commission of this crime also could not be traced. The dead body of Smt. Sushil Kumari also could not be recovered.

After completing the investigation a chargesheet was filed against Constable Mukesh Kumar alone for the offences under Sections 364/346 I.P.C. In the meanwhile the petition filed by Shri R.S. Dhull was disposed of by the Hon''ble Supreme Court of India by order dated 13.2.1996 with liberty to him to argue before the trial Court that persons other than Mukesh Kumar are also involved in the commission of offence and they be also summoned to face the trial. An application under Section 319 of the Code was moved before the trial Court. After recording the statements of Shri Gaje Singh (PW1), Smt. Khazani Devi (PW2), Shri Kitab Singh Malik (P.W.3) and Shri Samar Singh Saran (P.W.4), the trial Court by order dated 1.10.1997 summoned Salender Bishnoi, Kuldip Godara and the petitioner to face trial under Sections 364/346/302/210 read with Section 120 I.P.C. and also directed coaccused Mukesh Kumar to stand trial for all these offences.

The petitioner alongwith others moved the trial Court seeking bail but the request was turned down vide order dated 18.10.1997 (Annexure P11).

I have heard the learned counsel for the parties at length and have also perused the record produced before this Court.

Mr. H.L. Sibal, Senior Advocate, learned counsel for the petitioner has argued that the investigation carried out by the C.B.I. does not reveal any motive on the part of the petitioner to abduct and commit the murder of Smt. Sushil Kumari, nor any material could be collected to show that the petitioner is in any way associated with the remaining coaccused. It has been further argued that it has been found as a fact that the petitioner was at Delhi during the night of 30.11.1993 and as such he could not be a party to any conspiracy as is being alleged. It has also been pointed out by the learned counsel that there is no direct or circumstantial evidence to show even primafacie that the petitioner was involved in any manner in the alleged kidnapping or committing the murder of Smt. Sushil Kumari. As regards the confessional statement alleged to have been made by the coaccused Constable Mukesh Kumar before the Judicial Magistrate, at Patiala, it has been contended that the same has been retracted, and even otherwise the same has not been found to be true on verification by the C.B.I. itself. Still further it has been contended that such a retracted confessional statement can only be used at the trial and is not substantial evidence against the coaccused. The learned counsel has also read out the statements of Shri Gaje Singh (PW1), Smt. Khazani Devi (PW2), Shri Kitab Singh Malik (PW3) and Shri Samar Singh Saran (PW4) copies of which are Annexures P6 to P9, examined by the trial Court, and has argued that opinion evidence of a witness is not sufficient to involve any person in a criminal case. Thus it is contended that the petitioner deserves the concession of bail.

Shri R.K. Handa, learned Standing Counsel for C.B.I., has read out the confessional statement of Constable Mukesh Kumar and also the statements of four witnesses recorded by the trial court, referred to above. While opposing the request for bail the learned counsel has argued that the petitioner is an influential person and he may tamper with the prosecution witnesses.

Shri R.S. Dhull, learned Advocate has placed the copy of the enquiry report prepared by C.B.I. and produced before the apex court and copy of the confessional statement purported to have been made by Constable Mukesh Kumar before the Judicial Magistrate, Patiala and had vehemently argued that it was the petitioner who had strangulated Smt. Sushil Kumari and thereafter with his active help the dead body was thrown into the canal. It has also been pointed out by the learned counsel that it was the petitioner on whose instance Smt. Sushil Kumari had come out of the school which facilitated her abduction by the petitioner and his coaccused. It has been contended that if the petitioner is released on bail, there is every likelihood that he may not tamper with the witnesses or flee from justice.

It is correct that pretrial detention in itself is not an evil nor opposed to the basic presumption of innocence. But the sole purpose of pre trial detention of an accused is to secure his appearance to take the trial and to abide the sentence of law and not an anticipatory form of punishment. The test to be applied in granting bail is by reference to (i) the nature of accusation, (ii) the nature of the evidence in support of the accusation, (iii) the severity of punishment which conviction will entail. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. It will be relevant for the Court to consider the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It would also be rational to enquire into his antecedents to find whether he has a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail.

Admittedly, the investigation is complete, a chargesheet has been filed in the court, and the petitioner is not required for investigation. It is also not disputed that the petitioner has not been named as one of the accused nor he has been shown in Column No. 2 of the chargesheet. According to the Investigating Agency, the petitioner has no association with the remaining four accused persons, nor Mr. Dhull has been able to point out any direct or circumstantial evidence available on the record to indicate any such link. It has been primafacie found that the petitioner was not present at Hissar on the night of 30.11.1993 when it is alleged that a conspiracy to abduct Smt. Sushil Kumari was hatched. Primafacie the four witnesses i.e. Gaze Singh and Smt. Khazani Devi, the parents of Smt. Sushil Kumari, Shri Samar Singh Saran her brotherinlaw, and Shri Kitab Singh Malik have also not disclosed so far any motive on the part of the petitioner for the commission of the offence in question. The prosecution has not been able to point out any of its witnesses which can be tampered with, if the petitioner is released on bail. Prima facie there is no material to show that the petitioner ever indulged in any criminal activities in the past nor there is any material which may suggest that the petitioner is likely to commit serious offences while on bail. Admittedly, the petitioner is a permanent resident of Hissar, is a married person, and has roots in the society. Therefore, it cannot be said that he would flee from justice if released on bail. The mere fact that the petitioner hails from a family having political background is not sufficient to deny the concession of bail to him.

The question as to what evidentiary value is to be attached to the retracted confession purported to have been made by the coaccused Constable Mukesh Kumar, or to the testimony of four prosecution witnesses already examined by the trial Court referred to above, cannot and should not be discussed at this stage. It is not proper to make any comment on the quality of the investigation carried out by the C.B.I. in this case. Nothing should be prejudged on merits to avoid any prejudice to either of the parties. Detailed examination of the evidence and elaborate documentation of the merits ought to be avoided while deciding a bail application. Whatever has been stated above either on facts or in law is the result of constraint, and the trial court will not be influenced by the same, and shall confine itself to the evidence in the case while adjudging the guilt of the accused.

For the reasons mentioned above, this application is allowed and the petitioner is directed to be released on bail on his furnishing a bail bond in the sum of Rs. 15,000/ with two sureties each in the like amount to the satisfaction of the trial Court. It is further directed that the petitioner shall not leave the country without permission, the same shall be deposited in the trial Court.

Application allowed.