JUDGMENT :

K.S. Panicker Radhakrishnan, J.

1. Leave granted.

2. Can the Additional Sessions Judge while dealing with an application for anticipatory bail filed under Section 438 of the Code of Criminal Procedure, 1973 (for short "Code of Criminal Procedure"), express hisopinion on merits that no case is made out under Section 326 Indian Penal Code, even when the investigation is not yet over?

3. Appellant herein was the complainant from whom the statement under Section 161 Code of Criminal Procedure was recorded on 28.5.2012. Statement records that, at about 11.00 PM on 25.5.2012, the Appellant went to sleep at the rooftop of his house and his wife Shamina and his cousin sister Chandani were sleeping in the room. At about 2.30 AM on 26.5.2012, they made hue and cry and shouted for help. On hearing this, the complainant came down and saw that the In-laws of Chandani, namely, Hazi Saleem (father-in-law), Azad (devar), Taslim (uncle-in-law) and Noushad (brother-in-law) were dragging Chandani, which was objected by the complainant. Noushad and Azad then caught hold of him and Taslim fired at him with the gun injuring his both legs from back side and they ran away from the spot.

4. FIR was also lodged by the Sub-Inspector Lalaram on 26.5.2012 at 4.55 AM on the date of occurrence itself, wherein it was recorded that the complainant, immediately after the incident, was taken to G.T.B. Hospital from where MLC No. B-2309/12 was obtained on which the opinion given by the doctor was recorded. The injury, though simple, it was recorded, was due to the result of gunshot. On the basis of the same, a case under Section 326 Indian Penal Code was registered.

5. Respondents 2-4 approached the Court of the Additional Sessions Judge, NCT of Delhi for seeking anticipatory bail. The application was opposed by the Appellant/complainant as well as the State. Learned Additional Sessions Judge, however, passed the following order:

Perusal of the record reveals that as per the opinion of the expert, the nature of the injury sustained by the injured is simple and as such the ingredients of the offence Under Section 326 Indian Penal Code are not satisfied in the present set of circumstances. Further keeping in view that the applicants are having permanent base in Delhi and they have root in the society and they are also ready to join the investigation as and when required by the IO, I hereby allow the application with the direction to the accused persons to join the investigation as and when required by the IO and in case IO still feels the necessity of the arrest of the accused persons then he will enlarge them on furnishing of personal bond in the sum of Rs. 25,000/- with one local surety of the like amount to the satisfaction of IO/SHO.

6. Appellant/Complainant, aggrieved by the same, approached the High Court by filing Crl. M.C. No. 3021/2012 for cancellation of the bail, which was rejected by the Court holding that the cancellation of bail could take place only for rare and compelling reasons and that the case in question did not fall within the aforesaid pigeonhole. Aggrieved by the same, Appellant has come up with this appeal.

7. Shri N.S. Dalai, Learned Counsel appearing for the Appellant, submitted that the Courts below are not justified in granting anticipatory bail to Respondents 2-4, especially when the investigation is not over. Learned Counsel also submitted that the FIR clearly indicates the use of firearm, by which the complainant received gunshot injury, which attracts offence under Section 307Indian Penal Code. Learned Counsel also submitted that the learned Additional Sessions Judge is not justified in expressing the opinion that since the injury is simple, no offence under Section 326 Indian Penal Code has been made out, especially when the investigation is yet to be completed. Learned Counsel also pointed out that the custodial interrogation is absolutely necessary for proper investigation and since Respondents 2-4 are on anticipatory bail, in