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SUPREME COURT OF INDIA
P.K. GOSWAMI AND V.D. TULZAPURKAR, JJ.
Gurcharan Singh and others, Appellants
Versus
State (Delhi Administration), Respondent.
Criminal Appeals Nos. 456 and 457 of 1977
Decided on 6-12-1977.
Criminal Appeal No. 456 of 1977.
Criminal Appeal No. 457 of 1977
Raj Kumar Sharma and others, Appellants
Versus
State (Delhi Administration), Respondent.
Advocates appeared
Advocate (in Cri. Appeal No. 457 of 1977), for Appellants; Mr. Soli J. Sorabjee, Addl. Sol. Gen. and Mr. R. N. Sachthey, Advocates, for Respondent (in both Appeals).
Criminal Procedure Code, 1973 – Section 439 - First Information report – Anticipatory bail – Claim of compensation - Before F.I.R was lodged there had been a preliminary inquiry conducted by C.B.I bearing upon death of Sunder. Fifty-three witnesses were examined in that inquiry and six of them were said to be eye-witnesses - These eye-witnesses were all police personnel. During this preliminary inquiry all the six alleged eye-witnesses did not support the prosecution case, but gave statements in favor of accused - However, as stated earlier, the F.I.R was lodged and investigation proceeded in which statements of witnesses were recorded under S. 161, Cr. P.C – Held, Court are of the opinion that the above observations equally apply to a case under S. 439 of new Code and the legal position is not different under new Code – Court are satisfied that the High Court has correctly appreciated the entire position and the Sessions Judge did not at stage case was before him - Court will not, therefore, be justified under Art. 136 of the Constitution in interfering with the discretion exercised by High Court in cancelling the bail of the appellants in this case - Before closing, we should however make certain things clear – Court find that case is now before committing Magistrate - Court are also informed that all documents have been furnished to the accused under S. 207 new Code - Magistrate will therefore, without loss of further time pass an appropriate order under S. 209 - Court of Session will, thereafter, commence trial at an early date and examine all the eye-witnesses first and such other material witnesses thereafter as may be produced by the prosecution as early as possible - Trial should proceed de die in diem as far as practicable at least so far as eyewitnesses and the above referred to witness are concerned - Court have to make this order as both and submitted that trial will take a long time as witnesses cited in charge sheet are more than 200 and it will be a punishment to keep the appellants in detention pending the trial - Court have therefore thought it fit to make the above observation to which the learned Addl. Solicitor General had readily and very fairly agreed. After the statements of the eye-witnesses and said witness have been recorded, it will be open to the accused to move the Sessions Judge for admitting them to bail pending further hearing - Appeal are dismissed with the above observations - Stay Orders stand vacated - Appeals dismissed
JUDGMENT
GOSWAMI, J.:— These two appeals by Special Leave are directed against the judgement and order of the Delhi High Court cancelling the orders of bail of each of the appellants passed by the learned Sessions Judge, Delhi. They were all arrested in pursuance of the First Information report lodged by the Superintendent of Police, C.B.I. on 10-6- 1977 in what is now described as the "Sunder Murder Case". The report at that stage did not disclose names of accused persons and referred to the involvement of "some Delhi Police Personnel." Sunder was said to be a notorious dacoit who was wanted in several cases of murder and dacoity alleged to have been committed by him in Delhi and elsewhere. It is stated that by May, 1976 Sunder became a "security risk for Mr. Sanjay Gandhi". It appears Sunder was arrested at Jaipur on 31-8-1976 and was in police custody in Delhi between 2nd of November, 1976 and 26th November, 1976 under the orders of the Court of the Additional Chief Metropolitan Magistrate, Shahdara, Delhi.
2. It is alleged that the appellants ranging from the Deputy Inspector General of Police and the Superintendent of Police at the top down to some police constables were a party to a criminal conspiracy to kill Sunder and caused his death by drowning him in the Yamuna in pursuance of the conspiracy. According to the prosecution, the alleged murder took place on the night of 24th of November, 1976.
3. The appellants were arrested in connection with the above case between June 10, 1977 and July 12, 1977 and the Magistrate declined to release them on bail. Thereafter, they approached the learned Sessions Judge under S. 439 (2), Criminal Procedure Code, 1973, (briefly the new Code) and secured release on bail of the four appellants, namely, Gurucharan Singh (Supdt. of Police), P.S. Bhinder (D.I.G. of Police), Amarjit Singh (Inspector) and Constable Paras Ram on 1st August, 1977 and of the eight other Police Personnel on 11th August, 1977.
4. Charge sheet was submitted on 9th August, 1977 against 13 accused including all the appellants under S. 120-B read with S. 302, I.P.C. and under other sections. The 13th accused who was also a policeman has been evading arrest.
5. The Delhi Administration moved the High Court under S. 439 (2), Cr. P.C. against the orders of the learned Sessions Judge for cancellation of the bail. On September 19, 1977 the High Court set aside the orders of the Sessions Judge dated 1-8-1977 and 11-8-1977 and the bail bonds furnished by the appellants were cancelled and they were ordered to be taken into custody forthwith. Hence these appeals by Special Leave which were argued together & will be disposed of by this judgment.
6. In order to apreciate the submissions, on behalf of the appellants, of Mr. Mulla followed by Mr. Mukherjee it wil be appropriate to briefly advert to certain relevant facts.
7. On the allegations, this is principally a case of criminal conspiracy to murder a person in police custody be he a bandit. The police personnel from the Deputy Inspector General of police to police constables are said to be involved as accused.
8. Before the F.I.R was lodged on 10th June, 1977, there had been a preliminary inquiry conducted by the C.B.I between 6th of April, 1977 and 9th of June, 1977 bearing upon the death of Sunder. Fifty-three witnesses were examined in that inquiry and six of them were said to be eye-witnesses. These eye-witnesses were all police personnel. During this preliminary inquiry, all the six alleged eye-witnesses did not support the prosecution case, but gave statements in favour of the accused. However, as stated earlier, the F.I.R was lodged on 10th of June, 1977 and investigation proceeded in which statements of witnesses were recorded under S. 161, Cr. P.C. The appellants were also arrested and suspended during the period between 10th of June, 1977 and 12th of July 1977. During the course of the investigation, seven witnesses including six persons already examined during the prelimi
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