1.) The petitioners, having reasonable apprehension of their arrest, have filed the present Cr. Misc. Petition under Section 438 of the Code of Criminal Procedure 1973 seeking anticipatory bail in a murder case.
(2.) Both the petitioners are specifically named as accused in the first information report vide Annexure-1, giving rise to Marhaura P. S. Case No. 120 of 2005 dated 15-7-2005 registered for offences under Section 302/34 of the Indian Penal Code as also under Section 27 of the Arms Act. According to the first information report vide Annexure-1, petitioner No. 1 Munna Thakur alias Vijay Kumar Singh is alleged to have fired by his rifle upon the deceased Manoj Kr. Jaiswal, brother of the informant, as a result of which deceased became injured and fell down on the ground. Thereafter petitioner No. 2 Lalu Thakur and two other FIR named accused persons are also alleged to have fired upon the deceased by their respective firearm weapons namely pistol and rifles, and resorted to indiscriminate firing. On being satisfied about the death of the deceased on the spot itself, accused persons fled away on their respective motorcycles towards Chapra.
(3.) I have heard Mr. S.B.K. Mangalam, learned counsel appearing for the petitioners, Mr. R.P.S. Singh, learned A.P.P., for the State, as also Mr. Bindhyachal Singh, learned counsel appearing for the informant at length.
(4.) Learned counsel for the petitioners submit
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s that petitioners are innocent and have committed no offence and have falsely been implicated in the present case at the instance of local police. To buttress the aforesaid points, he has referred to the first information report vide Annexure-1 and has highlighted that the occurrence in question is said to have taken place on 15-7-2005 at about 10 a.m. in the day. S.I. of Police, after having received information at the police station on the same day at 10.15 a.m. immediately rushed to the place of occurrence and recorded the fardbeyan of the informant Sharwan Kr. Jaiswal alias Pappu at 10.30 a.m. i.e. just after half an hour of the alleged occurrence. Formal first information report was drawn up on the same day at 6 p.m. in the evening. He submits that before the formal FIR was drawn up the dead body was sent for autopsy and started recording the statements of witnesses in terms of Section 161, Cr. PC. He further submits that since formal FIR was drawn up at 6 p.m. on 15-7- 2005, the entire actions taken by the S.I. of Police prior to that either for investigating the case or for sending the dead body for post-mortem examination show that police was otherwise interested in favour of the prosecution party and was instrumental in getting the petitioners named as accused in the present murder case. He has further submitted that despite petitions filed by some local persons, their statements have not been recorded by the I.O. and instead steps were taken by the police for getting a warrant of arrest issued against the accused persons including the petitioners.
(5.) Learned A.P.P. as also learned counsel for the informant have submitted that in the FIR vide Annexure-1, there are specific allegations of firing against both the petitioners as a result of which deceased died instantaneously on the spot. It was further pointed out that the present case was instituted in the year 2005 and petitioners have remained absconding for quite long time. It was also pointed out that the petitioners are having their criminal background and they are accused in several other criminal cases. On these pleas, besides others, it was submitted that petitioners are not entitle to get the privilege of anticipatory bail.
(6.) Now, coming to the main point raised on behalf of the petitioners about starting investigation by the police before drawing up the formal FIR it is well established that once police receives an information about a cognizable crime and once the fardbeyan of the informant is recorded or a written complaint is received about a cognizable crime, the investigation has to be started forthwith. As a matter of fact, formal FIR is drawn up only at the police station and that may take some time. Therefore, police is not expected to remain tied handed and await the drawing up of the formal FIR before investigation is taken up. In this regard, this Court is reminded of a famous judgment of five Judges of the Privy Council in the matter of Emperor v. Khwaja Nazir Ahmad, reported in AIR 1945 Privy Council 18. While considering scheme, scope, and mandate of Sections 154, 156 and 157 of the Code of Criminal Procedure 1898, (old Code), which are exactly similar in the new Code of Criminal Procedure, 1973, Privy Council has observed as follows :
"But in any case, the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation. No doubt in the great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way but their Lordships see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigatioin into the truth of the matters alleged. Section 157, Criminal P.C. when directing that a police officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under S. 156 has been committed shall proceed to investigate the facts and circumstances, supports this view. In truth the provisions as to an information report (commonly called a first information report) are enacted for other reasons. Its object is to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten or embellished."
(7.) From the perusal of facts of the present case, it is apparent that the occurrence of murder took place on 15-7-2005 at 10 a.m. and the fardbeyan of the informant was recorded just after half an hour at 10.30 a.m. and formal FIR was drawn up on the same day at 6 p.m. Thus, it is apparent that there was absolutely no scope for embellishment. Occurrence has apparently taken place in the broad daylight and informant was in the company of the deceased in the market and, therefore, it is not expected that he will not mention the name of real culprit and would falsely implicate the petitioners. This Court is not impressed with the submission made on behalf of the petitioners and that has to be rejected.
(8.) According to the FIR the petitioners are the assailants of the deceased and the occurrence took place in the year 2005 and till date the petitioners have not surrendered in the present case and instead after more than four years from the date of the alleged occurrence, they have approached this Court seeking anticipatory bail.
(9.) A three-Judge Bench of Apex Court in the case of Pokar Ram v. State of Rajasthan, reported in AIR 1985 SC 969 : 1985 Cri LJ 1175, while deliberating about the considerations for grant of anticipatory bail u/S. 438, Cr. P.C. vis-a-vis a bail, while accused is in custody, has observed that when a person is an accused of an offence of murder by using a firearms, the Court has to be careful and circumspect in entertaining an application for grant of anticipatory bail. This Court is tempted to quote relevant observations of the Apex Court in the case of Pokar Ram (supra), which are as follows :-
"5. Relevant considerations governing the Court's decision in granting anticipatory bail under Section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convincted and his appeal is pending before the higher Court and bail is sought during the predency of the appeal. These situations in which the question of granting or refusing to grant bail would arise, materially and substantially differ from each other and the relevant considerations on which the Courts would exercise its discretion, one way or the other, are substantially different from each other..........."
9......When a person is accused of an offence of murder by the use of firearms, the Court has to be careful and circumspect in entertaining an application for anticipatory bail...................
11.......Let it be made distinctly clear that status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail. Anticipatory bail to some extent intrudes in the sphere of investigation of crime and the Court must be cautious and circumspect in exercising such power of a discretionary nature......."
(10.) Even Constitution Bench of the Apex Court in the case of Gurbaksh Singh Sibbia v. State of Punjab, reported in (1980) 2 SCC 565 : AIR 1980 SC 1632 : 1980 Cri LJ 1125, has held that there cannot be any straight- jacket formula either for granting the privilege of anticipatory bail or for refusing the same. It has also held that consideration for grant of bail depend on a variety of circumstances. Any one circumstance cannot be treated as of universal validity. I am tempted to quote some passages from the case of Gurbaksh Singh Sibbia (supra), which are as follows :-
"15...... Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises."..............
30............. It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."
(11.) Thus, it is now well-settled that considerations governing Court's discretion for grant of anticipatory bail are materially and, substantially different from those for grant, of bail, while accused is in judicial custody Further there cannot be any straight-jacket formula either for granting the privilege of anticipatory bail or for rejecting the same. Varieties of circumstances are required to be taken into consideration before extending the privilege of anticipatory bail to an accused in any cognizable crime.
(12.) Learned counsel for the petitioners has also submitted that I.O. of the case acted in haste for getting the accused persons arrested. The FIR was lodged on 15-7-2005 and I.O. prayed for issuance of warrant of arrest on the very next day i.e. 16-7-2005, which was allowed by the learned C.J.M., Chapra. On the prayer of the I.O. process under Section 82, Cr. P.C. was issued on 19-7-2005 and the properties of the petitioners were ordered to be attached in terms of Section 83, Cr. PC. on 22-7-2005. In support of the aforesaid contention he has annexed a copy of the order sheet of the Court of C.J.M., Chapra vide Annexure-2. It was also submitted that in view of the hasty action of the police one Shobha Devi wife of the petitioner No. 1 filed Cr.W.J.C. No. 509 of 2005 before this Court challenging the validity and legality of the orders issuing processes and order of attachment of the properties in terms of Sections 82 and 83, Cr. P.C. This Court by order dated 31-1-2007 has quashed the aforesaid order. From perusal of the order dated 31-1-2007 passed by a Bench of this Court, it is apparent that this Court was only considering the validity and legality of the orders issued in terms of Sections 82 and 83, Cr. P.C. and no finding of fact has been recorded that the petitioners are not accused in the present case and they are not required to surrender in the present case seeking bail. It has also not been held that police is not entitled to arrest the petitioners in the present case. Thus it is apparent that the aforesaid order passed by a Bench of this Court does not in any way help the petitioners for grant of anticipatory bail in the present case. It was lastly urged that the petitioners had filed petitions before the higher police officials for getting the matter investigated/supervised at their own level and unless and until higher police officials take up the investigation afresh, the petitioners cannot be arrested in the present case. In compliance of the order dated 27-11-2009, passed in the present case itself, I.G. of Police, Tirhut Range, Muzaffar-pur has submitted a report which has been kept at flag "X", where he has clearly stated that no investigation is pending at his level regarding the present case vide Annexure-1 in which petitioners are named as accused.
(13.) In the aforesaid facts and circumstances, it is apparent that petitioners are accused in a murder case punishable under Section 302 of the Indian Penal Code and there is direct allegation of firing against the petitioners causing instantaneous death of the deceased. Petitioners have been absconding for almost five years and have succeeded in delaying the progress of the trial in the Court below. In the aforesaid background, this Court is of the considered opinion that petitioners do not deserve the privilege of anticipatory bail in the present case. The application for anticipatory bail is accordingly rejected. The petitioners must surrender in the court below within a period of four weeks from today and seek regular bail, if so advised. If such a petition is filed in the Court beolow for grant of bail, then, that may be considered on its own merit without being prejudiced by this order.
(14.) It is made clear that the above observations made in the present order shall not be (in) any way prejudice the case of either party in future proceedings/trial.
(15.) Application stands dismissed. Petition dismissed