Wazir Singh vs State of Haryana

M.L. Singhal, J.

This is a criminal Misc. No. 22027M of 1998 whereby the petitioner Wazir Singh has prayed for the cancellation of anticipatory bail allowed to Anil Kumar, respondent by Sessions Judge, Jind in case FIR No. 442 dated July 7, 1998, registered in Police Station City Jind under Sections 302/343/34 IPC, vide order dated August 5, 1998.

According to the facts being projected in the aforesaid FIR by Wazir Singh (who is lodger of the FIR), Raja, was his father''s youngest brother. On June 30, 1998 at about, 4.00 p.m., he and his uncle Raja were present at their house situated in Hanuman Nagar, Jind, when the police party consisting of SIBanwari Lal and ASIAnil Kumar of Police Station Sadar Jind came in a jeep. They took his uncle Raja with them. He asked them the reason why Raja was being taken and they replied that he would come to know of the reason later. They seated Raja in the jeep and went away. He narrated the incident to his neighbour Girdhari Lal @ Nanha Caste Saini, Rangi Ram Pandit, Hawa Singh Saini, Bikha Ram Saini, and they accompanied him to P.S. Sadar Jind. On their arrival SI Banwari Lal and ASI Anil Kumar gave beatings to his uncle Raja. They asked them again about the matter why he was being beaten. Thereupon, they disclosed that he was to be interrogated about theft case, which he had committed in the house of Sultan Lohar. They requested them that they should release him and they would satisfy them. Despite their repeated requests, they did not release Raja. They returned to their house. On 1st, 2nd and 3rd July, 1998, Wazir Singh took Panchayat to the Police Station for the release of his uncle Raja, but they did not release him and they reiterated that they were to interrogate him about a theft case. Thereafter, he moved an application in the Court on July 4, 1998. Court issued notice. Only July 5, 1998, they learnt that his uncle Raja has been got admitted in Civil Hospital, Jind. They learnt that his uncle had been referred to MCH, Rohtak. Then, he (Wazir Singh) and Rangi Ram Pandit went to MCH Rohtak to know the condition of Raja. They saw that Raja''s condition was serious and within their sight Raja breathed his last. The cause of death of Raja is the injuries caused to him by SI Banwari Lal and ASI Anil Kumar.

Raja was given grievous injuries. He was in bad shape due to the injuries inflicted on him while in police custody. He was not released despite repeated requests to the police for his release on 1st, 2nd and 3rd of July, 1998. It is alleged by Wazir Singh that after the death of Raja on July 5, 1998, in the Hospital because of injuries inflicted on him while in police custody, the police tried to hush up the matter. No FIR was recorded against SI Banwari Lal and ASI Anil Kumar. Ultimately, with the intervention of the higher authorities, the case was registered on July 7, 1998. Report was made by Raja''s neighbour for theft against Raja. Police took him to P.S. Sadar, Jind for interrogation. He was admitted in the Local Hospital allegedly due to a fit from where he was sent to Rohtak. Learned Sessions Judge should not have allowed anticipatory bail to Anil Kumar and his coaccused Banwari Lal when Raja died due to the inhuman torture inflicted on him by them while he was in their custody. It is a custodial death. According to the opinion given in the postmortem report Raja died on account of shock and haemorrhage as a result of cumulative effect of multiple injuries. It is alleged that the learned Sessions Judge misdirected herself in granting anticipatory bail to Anil Kumar, respondent No. 2 and his coaccused Banwari Lal when there was a charge of custodial death against them.

It has been further alleged that the concession of anticipatory bail is being misused. Anil Kumar had been sending his uncle Bodh Raj, who is Hawaldar in Police, to pressurise the witnesses. In this regard, complaint has been made to Superintendent of Police, Jind (Annexure P.2). Grant of anticipatory bail will impinge upon the freedom of P.Ws. to depose before the Court.

Anil Kumar, Respondent No. 2, has opposed this prayer of Wazir Singh, urging that they had not committed any offence. FIR was registered against them on account of extraneous considerations. There is delay in lodging of the FIR. FIR is the result of due deliberations and consultations. In fact, Raja was wanted in case of FIR No. 328 dated July 1, 1998 under Sections 457/380 IPC. It was denied that he was picked up on June 30, 1998 or beaten in police custody. On July 4, 1998, he had arrested Raja and four others in connection with FIR No. 328 (ibid) and locked them in the police lockup. On July 5, 1998, Raja became ill and was got admitted in Civil Hospital, Jind at 9.00 a.m. The Doctor at Civil Hospital, Jind referred Raja to MCH, Rohtak, where he expired at 7.30 p.m. At the time of admission he was running 104 degree temperature. In Civil Hospital Jind also it was noticed that he had temperature. It was submitted that though initially the opinion of the Doctor given in the postmortem report was that the cause of death was cumulative effect of the multiple injuries, but the final opinion was deferred till the receipt of the report of Histopathologist with regard to the viscera of the deceased. Possibility of death of Raja due to high temperature could not be ruled out. Raja was apprehended at 9.00 p.m. on July 4, 1998 and thereafter was brought to P.S. Sadar, Jind and confined in the lockup. There was no question of his being in custody earlier to July 4, 1998 at 9.00 p.m. It was further urged that the learned Sessions Judge, Jind weighed all the pros and cons of the case before granting anticipatory bail. It was further urged that no pressure was put on the P.Ws. The story that pressure was put on the PWs by his uncle Bodh Raj on August 6 and 7, 1998 was concocted when application Annexure P.2 was addressed to S.P. Jind on August 6, 1998. How could any pressure be conceived on Aug. 6, 1998 as having been put on August 7, 1998.

I have heard the learned counsel for the petitioner, learned Assistant Advocate General, Haryana and the learned counsel for RespondentAnil Kumar and have gone through the record.

In the postmortem report injuries find mention on the dead body of Raja. It was admitted by Anil Kumar that he had arrested Raja not on June 30, 1998, but on July 4, 1998 and had locked him in the police lockup. Raja died in the custody of the police. In the postmortem report the cause of death given is the multiple injuries.

Anticipatory bail is allowed only when the grant of anticipatory bail is eminently justified by the facts of the case. Anticipatory bail is different from regular bail inasmuch as the grant of anticipatory bail sometimes impedes the investigation altogether while regular bail is granted after the accused has been taken in custody and investigation has gone to some length. Grounds on which bail can be cancelled can be enumerated as under :

(i) where the accused misuses his liberty by indulging in similar criminal activity;

(ii) interferes with the course of investigation;

(iii) attempts to tamper with evidence of witnesses;

(vi) threatens witnesses or indulges in similar activities which would hamper smooth investigation;

(v) there is likelihood of his fleeing to another country;

(vi) attempts to make himself scare by going underground or becoming unavailable to the investigating agency;

(vii) attempts to place himself beyond the reach of his surety;

(viii) nature and gravity of the circumstances in which the offence was committed;

(ix) position and status of the accused with reference to the victim and the witnesses;

(x) likelihood of tampering with the witnesses has also to be seen.

In this case when prima facie the cause of death was multiple injuries found by the Doctor, who performed postmortem examination when the deceased was in police custody, anticipatory bail should not have been allowed to Anil Kumar, Respondent. PWs on whom the fate of prosecution case hinges appear to be belonging to lower strata of the Society. They may not possibly withstand against the might of the accused, who are police officials.

Anticipatory bail is granted when the case is of exceptional character so far as the accused is concerned, as for instance if prima facie the accused does not seem to have participated in the occurrence and his participation appears to be doubtful.

For these reasons, anticipatory bail allowed to Anil Kumar by Sessions Judge, Jind is cancelled.

This Crl. Misc. petition is allowed.