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High Court Of Himachal Pradesh
KAMLESH SHARMA
JAGDISH CHAND - Appellant
Versus
STATE OF HIMACHAL PRADESH - Respondent
Cr. M.P. (M) No. 409 of 1992
Decided On : 06/26/1992
CRIMINAL PROCEDURE CODE - SECTION 438 - ANTICIPATORY BAIL - MURDER CASE - CONSIDERATIONS FOR GRANTING BAIL - COURT'S DISCRETION - FACTORS TO BE WEIGHED - LIBERTY OF INDIVIDUAL VS CAUSE OF JUSTICE - INTERPRETATION OF SECTION 438 CR.P.C. - APPLICABILITY OF SECTION 437(1) CR.P.C. TO SECTION 438 CR.P.C. - CONDITIONS FOR GRANTING ANTICIPATORY BAIL - DISTINCTION BETWEEN SECTION 437 AND SECTION 438 CR.P.C. - SCOPE OF SECTION 438 CR.P.C. - COURT'S ANALYSIS AND CONCLUSION - RATIO DECIDENDI - FINAL DECISION
Fact of the Case:
Petitioners apprehended arrest in a case registered under sections 302/201/34, IPC for the murder of Bhagat Chand. The deceased's brother, Prem Chand, filed a complaint alleging that the petitioners were last seen with the deceased and that they had threatened him over money transactions. The police interrogated the petitioners and recorded statements of witnesses, but no prima facie case was established against them. The petitioners filed an application for anticipatory bail.
Finding of the Court:
The court held that the petitioners were entitled to anticipatory bail. It observed that the police had been investigating the case since March 1992 but had not been able to collect any evidence connecting the petitioners to the murder. The court also noted that there was no substance in the prosecution's submissions that the petitioners were likely to influence witnesses or tamper with evidence.
Issues: 1. Whether anticipatory bail can be granted in a murder case when the investigation is incomplete? 2. What are the considerations for granting anticipatory bail? 3. Whether the provisions of section 437(1) Cr.P.C. are applicable to section 438 Cr.P.C.? 4. What are the conditions for granting anticipatory bail? 5. What is the distinction between section 437 and section 438 Cr.P.C.? 6. What is the scope of section 438 Cr.P.C.?
Ratio Decidendi: 1. The court held that anticipatory bail can be granted in a murder case when the investigation is incomplete, but the court must consider various factors before exercising its discretion to grant bail. 2. The court listed the following considerations for granting anticipatory bail: - The nature and seriousness of the proposed charges - The context of events likely to lead to the making of charges - A reasonable possibility of the applicant's presence not being secured at the trial - A reasonable apprehension that witnesses will be tampered with - The larger interests of the public or the State 3. The court held that the provisions of section 437(1) Cr.P.C. are not applicable to section 438 Cr.P.C. Section 437(1) provides that a person accused of a non-bailable offence shall not be released on bail if there appears to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. However, section 438 Cr.P.C. does not contain any such restriction. 4. The court held that the conditions for granting anticipatory bail are that the applicant must: - Join the investigation as and when called for - Not tamper with the prosecution evidence - Not influence the witnesses 5. The court held that the distinction between section 437 and section 438 Cr.P.C. is that section 437 applies after a person has been arrested or detained, while section 438 applies before the arrest is made. 6. The court held that the scope of section 438 Cr.P.C. is to provide for the grant of anticipatory bail to a person who has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence.
Final Decision: The court allowed the petitioners' application for anticipatory bail, subject to the conditions that they join the investigation as and when called for, not tamper with the prosecution evidence, and not influence the witnesses.
Kamlesh Sharma, J.—The petitioners are apprehending their arrest in a case F I.R0 No. 134 of 1992, dated 22nd May, 1992 under sections 302/ 201/34, L.P.C. registered at Police Station, Rohru.
2. On 25th April, 1992, the dead body of Bhagat Chand resident of village Gajandi, Tehsil Rohru, District Shimla, was found in Bagdhar forest. The matter was reported to the Police who came into action, got the dead body post-mortemed and interrogated a large number of persons of the area, including the petitioners. Ultimately, a F. I. R. was registered on 23rd May, 1992 at the instance of Prem Chand, brother of the deceased As per the statement of Prem Chand, under Section 154 Cr. P. C, on 23rd March, 1992, when the deceased was coming back to his village, he met the petitioners at a place known as Chuojar’ and later, at 6 00 p m they were found taking liquor In the shop of a Gurkha, namely, Chhotu Since the deceased had money transactions with petitioner Jagdish Chand, who had many a times threatened the deceased with dire consequences if his money was not paid in time, according to Prem Chand, he believed that his brother was killed by giving him poison in the liquor and also by beating him.
3. Besides the statement of Prem Chand, the Police has been able to bring on record the statements of Baldev Singh and Kishori Lal to the effect that petitioner Jagdish Chand used to tell them that if the money lent by him to the deceased was not returned as promised, he would take him to task. There is also the statement of Ramesh Chand that on 23rd March, 1992 at 5 30 p m. when the petitioners were taking tea at his shop, the deceased crossed in front of his shop and the petitioners had followed him.
4. These statements only point out the circumstance that the petitioners and the deceased were last seen together, From the postmortem report, no evidence is disclosed that the death of Bhagat Chand is homicidal During the pendency of the petition before this Court, the report of viscera was called for from the Director, Forensic Laboratory, Himachal Pradesh, according to which it did not contain any poison. As such, from the evidence on the Police tile, no prima facie case is made out against the petitioners, under sections 302/201/34, I.P.C
5. When the matter was taken up for arguments on 10th June, 1992, an application was moved on behalf of Prem Chand, brother of the deceased, through Sh. T. R. Chandel, Advocate, that he may be allowed to intervene and be heard in the matter, to which the learned Counsel for the petitioners, Sh. M. S Chandel, objected, mainly, on the ground that the complainant has no locus-standi to intervene and to be heard in a pre-arrest bail application. The objection raised is without any substance and is rejected. It is correct that section 301 (2) Cr. P. C. is the only provision which enables a third party to assist the prosecution and also submit written arguments with the leave of the Court in a case but in the interest of justice, a party can be allowed to mike a representation In the bail proceedings to supplement the submissions made by the prosecution, without being impleaded as an intervenor. Even under section 301 (2) Cr. P. C, the third party is not impleaded as a party to the proceedings but is given a right to assist the prosecution and to submit written arguments with the permission of the Court. If a third party is allowed to intervene in a proceedings. it is impleaded as a party and gets all the rights to make submissions as any other party to the proceedings For taking this view, this Court has taken support from P. S. Saravanabhavanandam and another v. S. Murugaiyyan and another, 1986 Cr LJ 1540, wherein the learned Judge held that:— "There is no provision in the Cr» P. C which enables a third party to get himself impleaded in the proceedings before the criminal court As already observed, we have only section 301 Cr P. C which enables the private parties to assist the prosecution and also submit writte
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