Sunil Rathi (In Jail) vs State of U.P.

S.K. Agarwal, J.—The bail application was received back from the Apex Court for reconsideration on the grounds indicated in its order by the Apex Court. The bail to this accused was granted by me against which the complainant had preferred an appeal before the highest Court of the land.

After hearing the parties, the case was remanded back to this Court, as stated above, for a fresh consideration on the grounds to be considered by this Court, as per direction of the Apex Court. The grounds are: "(1) the fact that the accused is named in the F.I.R. ; (2) the fact that accused had several other accusations to his credit ; and (3) the fact that the co-accused was denied bail." The Apex Court felt that these facts have not received consideration at the hands of the High Court. These are the three factors, to which this Court is required to give its consideration before affirming or disowning the previous order passed by it in favour of the accused-applicant on 30.5.2003.

The facts as available from the F.I.R. are that the present accused was named in the F.I.R. along with five other known accused. It was not the end of the matter, 3-4 unknown accused were also alleged as present along with these named accused persons in the incident. All these known and unknown accused were armed dangerously with sophisticated fire weapons. While preparing the G.D. entry, participation of these unknown accused was abandoned. It is clearly available from G.D. No. 12 by which the case was registered despite averment to it being made in the F.I.R.

In the F.I.R. there was an allegation that the accused persons had also taken away the licenced pistol of deceased Mahak Singh, but surprisingly in the G.D. entry no offence for this theft was registered. There was strong enmity between the parties. There is allegation in the F.I.R. that the accused persons managed the recall of the security guard of the deceased persons. All the accused persons, those named including the applicant and 3-4 unnamed were armed with tamanchae (country made pistols), pistols and sten-gun. All were alleged to have opened fire upon Mahak Singh and Mohkam Singh with an intention to kill them. Ved Singh, who at some later stage, before the occurrence, joined the deceased at the chabutara also suffered injury in the said shoot out. Another person, Mahendra''s son, also suffered firearm injuries.

An overall picture emerging from the two post-mortem examination reports is revelation of the fact that there were as many as eight entry wounds in the case of Mahak Singh. Out of them three wounds, viz., injuries No. 1, 3 and 7, have their exits also. Few injuries were on non-vital parts, viz., on the thighs. The shots seem to have been fired from close range and they apparently were of a rifle or a revolver. In pistols, generally factory made or country made, cartridges are used. Some of the injuries were of the dimension of 1-1/2 cm. ? 1-1/2 cm. or 1-1/4 cm. ? 1-1/4 cm. From some injuries bullets were recovered. One or two injuries were in the dimension of 3/4 cm. ? 3/4 cm.

Coming to the case of Mohkam Singh, I find that there were only two entry wounds, viz., injuries No. 1A and 2A, Injuries No. 1B and 2B are their exit wounds. The dimension was 3/4 cm. ? 3/4 cm. There was no blackening or tattooing. The injury on the back outer side upper third of right arm was oval shaped, meaning thereby that it apparently was a bullet injury. Injury No. 2A was an entry wound in the size of 1-1/4 cm. ? 1-1/4 cm. ? cavity deep on the right side back, just below the lower end of right scapula. Thus, both the injuries suffered by Mohkam Singh were on his back.

The case of the prosecution was that the accused persons opened fire upon these persons, while they were sitting on a chabutara. The injuries suffered by Mohkam Singh were on his back. This is indicative of the fact that this victim Mohkam Singh had tried to make an escape from the spot when he suffered these injuries. Same is the case of Vipin Kumar, an injured, who had also suffered injury in the incident on his back. Ved Singh had a lacerated wound 1/2 cm. ? 1/2 cm. with traumatic swelling on right hip region, 6 cm. below the iliac crest. It is also on his back. The weapons were not specified to any accused. So far as injured Ved Singh is concerned, he apparently was a person, who was knowing these accused and the witnesses and the deceased very well. The deceased called him to themselves. In the last order I had clearly stated that none of the two injured, Virendra and Ved Singh tried to name any of the accused persons. They all belonged to the same village. The accused-applicant also belonged to the same village. The probability of these not recognising the known persons makes out rather a case against the prosecution.

From a scrutiny of the post-mortem examination reports use of any country made pistol or pistol otherwise does not seem to be borne out. Failure of the injured eye-witnesses to name the known accused persons, nominated in the F.I.R., in their statement to the Investigating Officer u/s 161, Cr. P.C. causes a serious dent in the authenticity of the prosecution story. Ved Singh suffered injuries because he was present there and ran to safety leaving the cycle as soon as the shoot out started. It is pertinent to mention the fact that had this shoot out been in the said manner both the brothers of the two deceased must not have escaped wholly unscathed from said shower of shots.

The incident occurred allegedly at about 7.00 a.m. when the informant along with two deceased was sitting on the chabutara of Mohkam Singh and were engaged in conversations. It was almost the last week of June. Ved Singh stated that he is 75 years old and was driving his cycle on the road to Tikri. He suffered from poor vision, but still he identifies Mohkam and Mahak Singh sitting on the chabutara. According to his statement to Investigating Officer, these two alone were sitting there when he joined them on a call made by Mahak Singh. Since he started from there to go and distribute the cards of the marriage of his niece, firing was commenced. He abandoned his cycle and ran to safety. He also received a gunshot wound on his back and fell near the water tap. He did not see any one firing. He was taken to the police station from where he was sent for medical examination. In such context the omission to name the informant and brother of Mohkam Singh in his evidence assumes serious significance. None of the said two suffered any injury in this incident becomes relevant most effectively in this context.

Thus, two things are apparent from his testimony that informant Sompal Singh and Vijay, brother of Mohkam Singh were not present when the firing took place. Ved Singh was the only other person who joined the deceased at the chabutara. Vipin Kumar, another injured, stated that he had no knowledge about the occurrence. He only knows this much that on the date of occurrence at about 7.00 a.m. he was going to purchase grapes from the Qasba and in the meantime firing was resorted to at the house of a harijan. He suffered injuries on his foot and abdomen and fell unconscious. He claimed that he did not see any one firing nor he could identify any one. He was subjected to specific examination by the S.I. in the course of recording his statement to the extent that whether he had seen Vikram and his family members amongst the assailants. His statement was, he did not know from which direction the shots came and who fired. He fell unconscious immediately on receipt of the injury. He did not identify any one. He had given a written statement to the I.O. In his written statement to the Investigating Officer he had clearly stated that he had not seen any villager or Vikram and any other in the incident, nor he could identify any one. He did not know who admitted him to the hospital.

From the statement of the two injured eye-witnesses, especially from the statement of Ved Singh, presence of the other two eye-witnesses, including the informant, is ruled out completely. Ved Singh at that stage cannot be said to be a won over witness.

Thus, nomination of the accused in the F.I.R. does not affect in any manner the order passed by me earlier on 30.5.2003. I have clearly stated in paragraph 2 that: "It has been contended by learned Counsel for the applicant that the applicant along with the other persons, resident of the same village, were involved in this case along with 3-4 unknown persons. The victim was living in Punjab. Before this incident he came back to his village." It clearly shows his naming in F.I.R. was in my mind. I have further stated in the order that: "A perusal of the GD of registration of the case indicates that there is no mention of 3-4 unknown persons. It specifically referred to only six accused persons nominated in the GD being assailants." Quite in contrast, is the alleged presence of 3-4 unknown persons in the incident. It finds a clear mention in the F.I.R. It clearly means F.I.R. was prepared later on. I have also said that Form 13, which was sent along with the inquest memo to the doctor does not mention the time of occurrence and other facts which are necessarily to be mentioned therein. The weapons in the inquest memo, by which the firing was made, was not mentioned at all, though the same was disclosed in clear terms in the F.I.R. My order was quite clear. It is quoted hereunder:

Both the injured witnesses have not nominated the name of Ved Prakash alias Vedu as alleged that he is a man of short sight and did not identify any one and when he tried to run away from the spot he also suffered injuries on his back. There is another injured also who also says the same thing. Thus, apart from the informant who is brother there is no other witness available to name the applicant. So far as brother of the deceased is concerned he had also stated that they have rushed into their house and had seen the occurrence from the hole of the door.

Complete absence of any injury on their person further shows that their presence is a highly doubtful factor. Other two injured who tried to run away suffered injuries on their backs.

Thus, taking the said facts and circumstances in its entirety and also the considerations that nature of the offence, the time of offence, the circumstances and the probability of participation of the accused persons, opportunity to procure the presence of the accused to stand his trial, the possibility of any tampering of the evidence by him, though that fact is not mentioned but a perusal of my order dated 30.5.2003 in its totality leads to the conclusion that I had applied myself quite consciously to the facts available on record and thereafter the accused was enlarged on bail by me by the said order. Thus, the fact that the accused was named in the F.I.R. was very much in consideration at the time when I granted bail to him on 30.5.2003. No counsel for the complainant appeared in my Court to oppose the said bail application at that stage. Therefore, I had heard only learned A.G.A. It cannot be said with certainty that any fact with regard to the criminal antecedents were brought by learned A.G.A. in my notice, so it might have slipped attention. There was never any argument about his absconding or tampering with evidence raised before me.

Normally this Court is loathsome to grant bail in heinous offences except when the facts permit to do so. I am always conscious of the factors such as gravity of the offence, character of the accused, whether the offence is a consequence of gang-war or it was committed to enlarge its area of influence by the accused. Whether their availability to trial is probable or not. Bail does not run the risk of allowing them to tamper with evidence, etc. Antecedents, if brought to notice is also examined and given consideration.

In the case of Bihar Legal Support Society Vs. Chief Justice of India and Another, , the Apex Court itself, with regard to the orders granting or refusing bail or anticipatory bail, in paragraph 3 of its order has stated thus:

... But, we may point out that every Petitioner who files a SLP against bail or anticipatory bail has an opportunity of mentioning his case before the learned Chief Justice in his administrative capacity for urgent listing and wherever a case deserves urgent listing, the Chief Justice makes an appropriate order for urgent listing. It may, however, be pointed out that this Court was never intended to be a regular court of appeal against orders made by the High Court or the Sessions Court or the Magistrates. It was created as an Apex Court for the purpose of laying down the law for the entire country and extraordinary jurisdiction for granting special leave was conferred upon it under Article 136 of the Constitution so that it could interfere whenever it found that law was not correctly enunciated by the lower courts or Tribunals and it was necessary to pronounce the correct law on the subject. This extraordinary jurisdiction could also be available by the Apex Court for the purpose of correcting grave miscarriage of justice, but such cases would be exceptional by their very nature. It is not every case where the Apex Court finds that some injustice has been done that it would grant special leave and interfere. That would be converting the Apex Court into a regular court of appeal and moreover, by so doing, the Apex Court would soon be reduced to a position where it will find itself unable to remedy any injustice at all on account of the tremendous backlog of cases which is bound to accumulate. We must realise that in the vast majority of cases the High Courts must become final even if they are wrong. The Apex Court can also be wrong on occasions but since there is no further appeal, what the Apex Court says is final. That is why one American Judge said of the Supreme Court of the United States: "We are right because we are final: we are not final because we are right". We must, therefore, reconcile ourselves to the idea that like the Apex Court which may be wrong on occasions, the High Court may also be wrong and it is not every error of the High Court which the Apex Court can possibly correct...the Apex Court must interfere only in the limited class of cases where there is a substantial question of law involved which needs to be finally laid at rest by the Apex Court for the entire country or where there is grave, blatant and atrocious miscarriage of justice. Sometime, we Judges feel that when a case comes before us and we find that injustice has been done, how can we shut our eyes to it? But the answer to this anguished query is that the Judges of the Apex Court may not shut their eyes to injustice but they must equally not keep their eyes too wide open, otherwise the Apex Court would not be able to perform the high and noble role which it was intended to perform according to the faith of the Constitution makers. It is for this reason that the Apex Court has evolved, as a matter of self-discipline, certain norms to guide it in the exercise of its discretion in cases where special leave petitions are filed against orders granting or refusing bail or anticipatory bail. These norms have to be articulated in order that the people may know as to what is the judicial policy of the Apex Court in entertaining such special leave petitions. That would go a long way towards introducing a measure of certainty in judicial response to such special leave petitions and would also tend to reduce the inflow of such special leave petitions. This was the reason why a Bench of this Court consisting of two of us, viz., the Chief Justice and Justice Ranganath Misra, clearly enunciated in an order made on 30.10.1985 in SLP (Criminal) No. 2938 of 1985 that this Court should not "interfere with the orders granting or refusing bail or anticipatory bail" and that "these are matters in which the High Court should normally become the final authority". We reiterate this policy principle laid down by the Bench of this Court and hold that this Court should not ordinarily, save in exceptional cases, interfere with order granting or refusing bail or anticipatory bail because these are matters in which the High Court should normally be the final arbiter.

The above pronouncement was prophetic. It was made by a Bench of five Judges headed by P. N. Bhagwati, C.J. ; Ranganath Misra ; V. Khalid ; G. L. Oza and M. M. Dutt, JJ.

The other granting bail or refusing to grant bail are interlocutory orders, the new Code of Criminal Procedure has clearly provided for no revision against any such orders. When an order granting bail passed by a Sessions Judge is not revisable in the High Court, likewise the matter when it goes to the Apex Court should also be dealt with in the light of the guidelines professed by its abovesaid decision. I always try to do justice to the best of my ability and knowledge, learning and understanding in a most conscious manner. I never intend to bestow compensation to any one. Bails are not granted by me without sound reasons. There may be lacunas in recording of reasons in my order, but the intention in granting or refusing to grant bail are sanguine, honest and sincere and always in accordance with the norms settled by the Apex Court in a decision delivered in The State Vs. Captain Jagjit Singh, . The decision was delivered by a Bench comprising of K. N. Wanchoo, K. C. Das Gupta and J. C. Shah, JJ. The considerations laid down grossly by the Bench are seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other considerations, which arise when a Court is asked to admit accused to bail in a non-bailable offence.

u/s 439(1), Cr. P.C., the restrictions imposed by Section 437(1), Cr. P.C. have hardly any application when it comes to the powers of bail of the High Court. The power to grant bail u/s 437, Cr. P.C. was confined only to the Court where the person is brought before at the first instance for remand after the arrest without a warrant and question of grant of bail arises. u/s 439, Cr. P.C. the powers of the High Court to grant bail were concurrent with the powers of the Court of Sessions and the accused used to be in judicial custody. Investigation normally then is in process. In this connection the words used in Sub-section (1) are: "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." Further the proviso says: "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, though 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." Thus, the power to grant bail is unfettered subject to the restriction imposed in Sub-section (3) of Section 437, Cr. P.C. Sub-section (3) only ensures that certain category of offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment, or conspiracy or attempt to commit, any such offence, is released on bail under Sub-section (1), the Court may impose any condition which the Court considers necessary. The principles are enumerated in Sub-clauses (a), (b) and (c). The condition is to ensure the attendance of the persons who faces the trial to attend in accordance with the terms of his bond, to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the conviction of which he is suspected to and otherwise any condition in the interest of justice.

While considering the bail again as per the directions issued by the Apex Court in the leave petition, I have reconsidered the whole episode that occurred at 7.00 a.m., as per the prosecution case, at the chabutara of one of the deceased. The facts that impressed me were that there was enmity between the parties. The prosecution side was suspicious of the participation of these persons. The possibility of the incident having taken place sometime other than 7.00 a.m., i.e., before the sun rise, cannot be eliminated in the present set of facts and circumstances. The participation of 3-4 unknown persons along with known six persons including the applicant further was a consideration that weighed with me. Total failure of the injured witnesses to name any one of these known and nominated assailants who were named in the F.I.R. specifically by Sompal Singh brother of Mahak Singh is yet another strong circumstances guiding me towards bail. Presence of Sompal and Vijay brother of Mohkam Singh were not corroborated by the evidence of Ved Singh, an injured witness. Presence of injuries subscribing to the use of sophisticated weapon like revolver or rifle other than country made pistol or regular pistol is yet another piece of evidence which led me to the belief that enmity might have been in the root of these nominations. Rejection of bail by another Bench of this Court never was considered to be a guiding factor (parity) while considering bail prayer of another accused. It is a law settled since long. I was guided by my conscience and my appreciation of the evidence. A Judge is to be guided by his own conscience bearing in mind the basic principles laid down, as earlier said in The State Vs. Captain Jagjit Singh, . As earlier said, I keep those principles very much into my mind. There was no mention of the weapons in the inquest memos, though they were described in the F.I.R. but for a bald general assertion that the deaths were caused by firing, which in my opinion, is not enough, especially when the F.I.R. is claimed to be in existence when the inquest memos were prepared. It has a bearing upon the genuineness of the F.I.R. as well. The other charge alleged against the applicant is criminal antecedence. In paragraph 8 of the counter-affidavit a bald assertion was made that the applicant is being prosecuted in several heinous offences of murder, attempt to murder and attempt to abscond from jail (case Crime No. 22 of 2002, under Sections 323/324/224, I.P.C.) Except the said case no crime number, no other record was placed before this Court at the time of hearing. The complainant''s counsel even in the counter-affidavit so filed in this Court has not given the details but referred to SLP alone. The applicant, besides the present case was claimed to be involved in Crime No. 75 of 2001 mentioned at Sl. No. 2. There is no such case against the applicant, instead a Case Crime No. 60 of 2001 under Sections 392 and 411, I.P.C. was registered against the applicant. He was granted bail on 30.6.2002. In F.I.R. 41 of 2000 as mentioned at Sl. No. 3 a charge-sheet is filed just shortly before the SLP None of the cases except the present case is a case u/s 302, I.P.C. They are of minor offences. He is almost in all the case on bail and was involved in this case falsely by the local police at the behest of the complainant party just to defame the family which is asserted in rejoinder by learned Counsel for this applicant. The mother of the applicant is chairperson of the town area for the consecutive two terms. On account of that the complainant party has been roping in the applicant in forged cases is submitted. Thus, in my opinion, the applicant deserves to be enlarged on bail. The circumstances do indicate that.

Two new facts find mention during arguments and in this counter-affidavit which was filed after the rehearing, as per direction of the Apex Court, was made by me and order was pronounced. I deferred the dictation of reasons because hardly any time was left. The complainant counsel was present. Affidavit was accepted by me in Chambers later on without service of its copy on the counsel. These facts are that one of the eye-witnesses was murdered by a cousin of the applicant and secondly that the sessions trial is on the verge of the conclusion. No documents, F.I.R. especially, were filed to afford me any opportunity to appreciate the assertion in the light of the circumstances in which that murder came to be committed by the cousin was the murdered witness was connected with the case at hand or not was not clarified at all. The name of such witness too was not disclosed. The trial is not likely to end in near future is also clear from the fact that the prosecution has applied for amendment of the charge. It was allowed. Charge was amended and the witnesses are recalled to fill up the lapses in charge. This order is dated 26.5.2002. Certified copy of this order was brought on record by learned Counsel for the applicant already.

In this view of the matter the applicant, involved in case Crime No. 166 of 2001 under Sections 147/148/149/504/506/302/307/404, I.P.C., P. S. Doghal, district Baghpat, is enlarged on bail, during pendency of trial, on his furnishing a personal bond in the amount of Rs. 25,000 with two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate, Baghpat. He will desist from doing any damage to the witness of the case in any manner and an undertaking to that effect shall be furnished by him before the Chief Judicial Magistrate, Baghpat. He will also desist from involving himself into any offence of the nature in which he is on bail or any non-bailable offence of heinous nature.