J.D. KAPOOR, J.
(1) THOUGH through instant Crl. M (M) petition extension for interim bail was sought but through Crl. M. 558/03 moved in this main petition prayer for regular bail has been made.
(2) PETITIONER is facing a trial in a murder case arising out of FIR no. 287/1999 registered under Sections 302/201/212/120b/34 IPC at P. S. Mehrauli for having allegedly fired in the late midnightly hours a shot aiming at a young lady Jessica Lal, a Model, who was acting as a Bar-tender in a weekly party being held at a place known as Qutub Colonnade at Mehrauli where Ms. Beena Ramani and her Model daughter Malini Ramani were running a restaurant by the name and style of 'once Upon A time'.
(3) IT was unfateful day of 29th of April 1999. Around 300 to 400 people had attended that party. After 1. 00 a. m or so 70-80 people remained while other had left. It was 2. 00 a. m in the night when Malini Ramani and deceased Jessica Lal and complainant Shyan Munshi and a waiter were present alongwith 5-6 more persons in the restaurant when the petitioner-accused alongwith his friends came there and asked the waiter to serve him the drink. At first instance the waiter did not oblige him. When accused insisted for being served with the drink deceased Jessica Lal and Malini Ramani intervened and told him that the party was over and no liquor was left. It was at that point of time that the petitioner -accused is alleged to have threatened that he would have to adopt his own methods to get the drink. The deceased Jessica Lal again tried to persuade that there was no reason to feel angry. It is alleged that this infuriated the petitioner who took out the Pistol from his pants and fired one shot in the ceiling and the other shot aiming at Jessica Lal which he hit at her fore-head on the left side. As a result she fell down and was removed to Aslok Hospital with the help of Jatinder Raj and Madan Waiter.
(4) THE Police on being informed by the PCR reached the spot immediately but by that time the injured had already been removed to the Hospital.
(5) DURING the investigation the Police collected long chain of evidence leading to the petitioner as the person who had shot dead the deceased without any provocation.
(6) IT is alleged that during investigation the police seized two empty cartridges from the spot and sealed the same. It is alleged that at about 2. 45 a. m. SHO S. K. Sharma also reached the spot alongwith police staff comprising of PW-30 Sharwan Kumar and other officials and PW-30 was deputed to guard the vehicles. While PW-30 Sharwan Kumar was guarding the vehicles when a Tata Siera of white colour driven by co-accused Amandeep Gill came there and stopped near a Tata Safari parked there and despite the protests of Sharwan Kumar co-accused Vikas Yadav entered the Tata Safari and drove away the same. Sharwan Kumar tried to stop it but could not and he then hit at the rear side glass on the drivers side of the Tata Safari which was subsequently seized by the Police of Sector 24 Noida and a cartridge of. 22 bore was seized from the dash-board box with changed window pane. Immediate escape by the petitioner from the scene of occurrence by way of pushing the crowd, leaving behind the Tata Safari at the spot unattended, subsequent removal of his car from the spot by his co-accused by use of force against the guard on duty, its recovery with changed window pane is wholly inconsistent with the innocence and consistent with the guilt.
(7) ON the night of occurrence the police also visited the farm house of the petitioner in village Samalkha Delhi and seized the petitioner's licensed Pistol, his Arms license, a photograph, a diary and a cassette. However with great efforts the petitioner was traced and arrested.
(8) THE interim bail of the petitioner was granted mainly on account of the non-availability of a crucial witness who was a Nepali boy and was employed as a servant in Amandeep Gill 's house for long. The same was being extended from time to time due to his non-appearance. Now the regular bail of the petitioner is being sought mainly on the ground that the petitioner has during the period of interim bail which spread over for more than a year established his bonafides and credentials by regularly appearing during the trial and non-indulgence in any unlawful activity nor has he ever attempted to influence the witnesses.
(9) IT is pertinent to mention that earlier application for regular bail was moved by the petitioner after examination of few witnesses but was dismissed by this Court vide order dated 3rd September, 2001
(10) MR. RAM Jethmalani, learned senior counsel pleading for the release of the petitioner on regular bail has mainly relied upon the judgment of the Supreme Court delivered in Gurbaksh Singh Sibbia Vs. State of Punjab (1980) 2 SCC 565 which mainly confines to the question of grant or refusal of an anticipatory bail.
(11) THE observations made in various judgments referred in the said judgment which Mr. Rama Jethmalani took advantage of lay down object of bail and principles governing its grant or refusal. These are as under:-
(i) Nagendra Vs. King Emperor AIR 1924 Cal 476 "the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment".
(ii) Emperor vs. Hutchinson AIR 1931 All 356 "the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. The principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. "
(iii) In American Jurisprudence (2d, Volume 8, page 806, para 39), it is stated:-"where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end. "
(12) SHRI S. K. Saxena, the learned Special Public Prosecutor has resisted the release of the petitioner on regular bail mainly on the following premises:- (i)The evidence so far produced has reasonably connected the petitioner with the commission of the crime. (ii)The offence is grave and of highest magnitude and carries extreme and severest punishment. (iii)The witness who remains to be examined is the most material witness and though he had left for Nepal before the petitioner was released on interim bail, but during the period the petitioner has remained on interim bail the witness has disappeared and is for the time being not traceable though prosecution is making all out efforts to procure his presence from Nepal by contacting all possible addresses. This is such a circumstance that disentitles the petitioner to be even continued to remain on interim bail what to talk of the release on regular bail.
(13) THE statement of this witness namely PW Dinesh Kumar is highly crucial. He has stated that on 29. 4. 99 the petitioner and other co-accused persons had initially assembled at the house of Amandeep Gill alias Tony where he was employed as a Chowkidar. He had seen the petitioner alongwith other co-accused persons leaving the house together and then in the late hours of the night he saw Tony and other persons except the petitioner coming in the car and later on the petitioner alone came on foot. As per the prosecution story, after the occurrence the petitioner had fled away from the spot and his car was found parked outside the place of occurrence but was recovered and seized later on by the police from Noida. As is apparent this witness is the most important link of the chain of the circumstances connecting the petitioner with the commission of crime.
(14) IN the above referred judgment reference was also made to two most important judgments of the Supreme Court viz. (i) Gurcharan Singh vs. State (Delhi Administration) (1978) 1 SCC 118 and (ii) Gudikanti Narasimhulu vs. Public Prosecutor (1978) 1 SCC 240. Law laid down by the Supreme Court on the grant or refusal of bail in these cases need to be referred.
(15) IN Gurcharan's case Supreme Court laid down the following guidelines:-Section 439 (1), Crpc of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under S. 437 (1) there is no ban imposed under S. 439 (1) CRPC against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under S. 439 (1) Crpc of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of S. 437 (1) and S. 439 (1) Crpc of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of S. 437 (1) and S. 439 (1) Crpc of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; or tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out. "
(16) IN Gudikanti's case observations of Supreme Court are as under:-
"it is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record---particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance. "
(17) IN nutshell, the following principles emerge for grant or refusal of bail under Section 437 Cr. P. C:-
(i)Bail should not be refused unless the crime charged is of the highest magnitude and the punishment of it assigned by law is of extreme severity; (ii) Bail should be refused when the court may reasonably presume, some evidence warranting that no amount of bail would secure the presence of the convict at the stage of judgment; (iii)Bail should be refused if the course of justice would be thwarted by the person who seeks the benignant jurisdiction of the Court to be freed for the time being; (iv) Bail should be refused if there is likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice; and (v) Bail should be refused if the antecedents of a man who is applying for bail show a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail.
(18) THERE is long chain of circumstantial evidence linking the accused with the crime which is inconsistent with his innocence and consistent with his guilt. The gravity and the heinous nature of the crime is projected and demonstrated from the fact that on trivial provocation rather non-existent provocation the petitioner became so infuriated that he took out his Pistol from his pocket and shot at a young woman from close range who was trying to persuade him that the Bar was closed and no liquor could be served to him and, therefore, he should not feel angry for not being served with the liquor.
(19) IT shows presence of element of criminality in some remote corner of the mind of the petitioner. If a person can take the life of a young person without any provocation much less the grave provocation it is not understandable as to what such a person can do if provocation is grave and strong.
(20) THE highest magnitude of the crime and the severest punishment it carries with it and the non-availability of the most material witness who is probably the crucial link of the chain of circumstantial evidence connecting the petitioner with the crime in question cannot rule out the possibility of the petitioner fleeing from the judgment.
(21) THOUGH the most crucial witness was not available for some time when the petitioner was in custody but the moment he was released on interim bail the witness who hails from Nepal appears to have vanished or gone underground. It is something different that the Police has failed to trace the said witness for such a long period. This perhaps is the effect of the release of the petitioner on interim bail for such a long time. Possibility of his having disappeared on account of release of the petitioner on interim bail cannot be ruled out. Thus for this reason the petitioner is even not entitled for further extension of interim bail. There is no contingency at all.
(22) IT's not that wealthy and mighty always submit themselves to trial and judgment because of their roots and poor and week only flee from justice. This is entirely a misconceived notion. Similarly non-misuse of temporary bail is no guarantee for submitting to judgment in a crime of highest magnitude and heinous nature carrying a sentence of death. The experience and some incidents in the recent past show that it
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is wealthy and the mighty who even in the event of arrest for the purpose of investigation run away and possibility of such a tendency when the judgment is in the offing is much more. Apart from the severity of punishment which in the instant case is death sentence also and the highest degree of gravity of offence, the release of the petitioner on regular bail would be unsafe and hazardous. The trial is at the fag end and is likely to be concluded in a short time and a material witness of most incriminating circumstance is yet to be examined. (23) IN view of the foregoing reasons I do not feel inclined to enlarge the petitioner on regular bail. In the result the petition is dismissed. The petitioner shall immediately surrender before the trial court on 13. 11. 2003 to be sent to judicial custody to face trial. (24) HOWEVER before parting it is directed that the Police Commissioner of Delhi shall see that all efforts are made by the Police to procure the presence of the witness Dinesh Kumar who is most material witness of the circumstantial evidence and shall produce him as early as possible so that the trial may not prolong further and also to avoid its reputation being smeared with some ulterior or oblique motives. Non-production of this witness in a case of horrendous nature which hogged the publicity in national press shows not only the inefficiency of the police but its indifferent and cavalier attitude also. Now the excuse of the non-availability of the witness on account of the accused being at large is no more available to the Police. (25) COPY of the order be sent to the Police Commissioner, Delhi for compliance of para 24.