Ahmad Nabi and Another vs State of U.P.

B.L. Yadav, J.—This is a second bail application filed on behalf of Ahmad Nabi and Arif u/s 439 of the Code of Criminal Procedure. The first bail application was rejected by this Court on 1-10-1985.

2 The prosecution story, in brief, is that on 6-7-1985 at about 9.30 a.m. Shamim Ahmad son of the informant was coming to his house and when he reached the triangular path way near Hakim Mubarak the applicants armed with knives and some other accused armed with lathis started inflicting injuries on the deceased and as a result thereof he died. This occurrence was witnessesed by Saghir Ahmad, the father of the deceased and other witnesses, namely, Sharif Ahmad etc. The first-information report is Annexure ''1'' and the post mortem examination report is Annexure ''2'' to the affidavit accompanying the second bail application. On behalf of the complainant and the State counter affidavit have also been filed.

Sri Viresh Misra, appearing for the applicant, urged that u/s 157 Code of Criminal Procedure the procedure for investigation has been provided. The statutory provisions of Section 157 Code of Criminal Procedure are fruitfully set out below in order to appreciate arguments advanced by the learned Counsel:

Procedure for Investigation.

(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered u/s 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and if, necessary, to take measures for the discovery and arrest of the offenders:

Provided that- (a) when information as to the commission of any such offence is given against any person by name and the case is not of serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) if it appears to the officer in charge of the police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case;

(2) In each of the cases mentioned in Clauses (a) and (b) of the proviso to Sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with requirements of that Sub-section, and, in the case mentioned in Clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.

It was further urged that it was celar from the first information report (Annexure ''1'') that the date of occurrence was 6-7-1985 at 9-30 a.m. whereas in view of Section 157 Code of Criminal Procedure the Officer in-charge of the police station in case he suspects the commission of offence, he shall forthwith make a report of the same to the Magistrate empowered to take cognizance of such offence. Further in view of Section 158 Code of Criminal Procedure the report u/s 157 Code of Criminal Procedure is to be submitted through such superior officer of police as the State Government, by general or special order, may appoint in this behalf. In compliance with these two provisions the Station Officer sent a radiogram (Annexure 3-A) which was to the effect that at about 9-45 a.m. Shamim Ahmad was murdered. The time of the occurrence was accordingly changed from 9-30 a.m. to 9-45 a.m. and the names of all the accused persons were not mentioned nor the names of the witnesses were mentioned. The learned Counsel submitted that as the time itself was changed no sanctity of the time can be had and further it appears that the first information report was itself of 10 a.m. and the departure from the police station was also shown at 10 a.m. and the preparation of the panchayatnama was done since 10-30 a.m. to 5 p.m. These details were given in paragraph No. 7 of the affidavit (accompanying the second bail application) and those were on the basis of the entry in the general diary dated 6-7-1985. In this way it was urged that the mandatory provisions of Section 157 Code of Criminal Procedure were not complied with. Paragraph Nos. 7 and 8 of the affidavit have been replied in the counter affidavit filed by Bhagwant Singh Chauhan, Sub-Inspector, Police Station, Nahtaur, District Bijnor. In paragraph No. 6 thereof it has been stated that after the first information report was lodged the deponent came to the place of incident and recorded statements of the eyewitnesses and he stated that he noted fourteen injuries. He did not deny the statement contained in paragraph No. 6 and 8 of the affidavit. Similarly Saghir Ahmad, the complainant, although filed his Counter affidavit but he stated in paragraph No. 7 of his counter affidavit only this much that that paragraph Nos. 7 and 8 would be replied by the Investigating Officer and he did not controvert the allegations about the radiogram and the defects pointed out in the prosecution as required by Section 157 Code of Criminal Procedure.

The learned Counsel further submitted by making reference to paragraph No. 9 of the affidavit that in the panchayatnama only fourteen injuries were entered whereas in the post-mortem examination report twenty four injuries were found on the person of the deceased. About this reply was given in the counter affidavit filed by Bhagwant Singh Chauhan, Sub-Inspector and he stated that according to the deponent only fourteen injuries were found and a large number of injuries were noted by the doctor when he examined minutely. In paragraph No. 8 of the counter affidavit filed by the complainant it has been stated that all the injuries on the person of the deceased could not be correctly located while preparing the panchayatnama on account of the blood. It was urged that there was discrepancy in the number of injuries noted in the panchayatnama and those found by the doctor. It was further urged that there could be one or two mistakes in counting the number of injuries but ten injuries might not be ommitted to be noted while preparing the panchayatnama. This was a fact which goes to show that the panchayatnama was not correctly prepared as provided by law. Reliance was placed on Kali Charan v. State of U.P. 1981 ACJ 108, Surya Pal v. State of U.P. 1981 ACJ 179 , State of Punjab Vs. Tarlok Singh, , Manohar v. State 1983 ACC 64, Marudanal Augusti v. State of Kerala 1980 SCC 985 , Ishwar Singh Vs. State of U.P., and Shyama Charan v. State 1985 ACJ 8.

Sri S.A. Gilani appearing for the complainant and Sri R.K. Srivastava, appearing for the State, urged that even discrepancy in sending the information as required by Section 157 Code of Criminal Procedure was not fatal and it would not vitiate the trial. On account of certain mistake in the number of injuries detected by the doctor and those discovered at the time of perparation of the panchayatnama would not lead to any adverse inference against the prosecution and the applicants were not entitled to bail. The second bail application cannot be considered as a matter of right nor as an appellate Court and unless new points have been discovered the second bail application could not be considered.

The learned Counsel for the complainant placed reliance on Sarwan Singh and Others Vs. State of Punjab, and Pala Singh and Another Vs. State of Punjab, .

I have heard the learned Counsel for the parties. It is a fact that this is a second bail application. It can not be, allowed unless some new points have been made out. But in this application some new points have been made out inasmuch as the details of the discrepancies in the investigation were not given in the first bail application. The contents of paragraph No. 7 of the affidavit accompanying the second bail application are entirely new. I am considering this second bail application on new points not urged or taken when the first bail application was being decided, hence on new grounds the second bail application can be considered.

I am of the opinion that the intention of the Legislature in enacting Section 157 Code of Criminal Procedure was to make this provision and that of Section 158 Code of Criminal Procedure mandatory. It is mandatory that the Station Officer shall send a report of the first information report to the Magistrate empowered to take cognizance of such an offence. u/s 157 Code of Criminal Procedure the words ''the same'' qualify the word ''information'' which substantially means the same contents of the information for being sent to the Magistrate and also to the superior officers of the police as required u/s 158 Code of Criminal Procedure. But in the instant case the correct time was not noted in the radiogram nor the names of all the accused or the prosecution witnesses were mentioned, hence I am of the opinion that the report sent by the Station Officer was not in compliance with the provisions of Sections 157 and 158 Code of Criminal Procedure.

Further even the discrepancy pointed out by the learned Counsel for the applicants regarding the number of injuries noted down in the panchayatnama and those actually found by the doctor was noticeable inasmuch as only 14 injuries were mentioned in the panchayatnama whereas twenty four injuries were found by the doctor as is clear from Annexure ''2''. There may be in fact some minor difference but not so much.

As stated earlier, even the statements contained in paragraph Nos. 7 and 8 of the affidavit were not denied and paragraph 9 of the affidavit was relied in the counter affidavit of the complainant in paragraph No. 98 that it appears to be that the body was found in a pool of blood, hence injuries could not have been noticed while preparing the panchayatnama, but it was no explanation.

Kali Charan v. State of U.P. (Supra) was a case where this Court held that when there appears to be some discrepancy in the time of the first information report, the applicant must be entitled to bail. Surya Pa] v. State of U.P. (Supra) was a case where some discrepancy was held to be material and entitled the applicant for bail even though it may require further probe at the time of trial. In Manohar v. State (Supra) it was held that the lime of occurrence mentioned in the challan was 7.10 p.m. whereas in the first information report the time of occurrence was mentioned as 6 p.m. This indicated that the inquest report and the challan of the dead body were prepared but came into existence lateron and on that count the trial was to be vitiated. In the instant case also difference in time given in the information sent and that noted in the first information report was material.

In the State of Punjab v. Tirlok Singh (Supra on page 1064 para 5) the Supreme Court came to the conclusion that from the discussions of the evidence it is clear that the report was not lodged at 3-45 p.m. but at much later hour and when the police arrived at the scere of occurrence there were consultations to decide what version should be put forward etc. and such delay was held to be material to doubt the prosecution version. In Marudanal Augusti v. State of Kerala (Supra) the Supreme Court held that once the first information report is held to be not genuine the prosecution could be doubted. In Shyama Charan v. State (Supra) it was held after discussing the evidence that by the time the inquest report was prepared the first information report had not come into existence and in the inquest report, space for the crime No. and the sections were left to be filled lateron and was actually filled lateron.

Swaran Singh v. State of Punjab (Supra) relied upon by the learned Counsel for the complainant, was a case where the delay was caused in sending the first information report to the Magistrate and the Supreme Court held that on that count alone the trial cannot be said to be vitiated. This case would not help the complainant. Similarly Pala Singh v. State of Punjab (Supra) relied upon by the learned Counsel for the complainant, was a case where the scope of Section 157 Code of Criminal Procedure (old) was discussed and the facts were that there was some delay in receipt of the occurrence report by the Magistrate and it was held that that by itself it does not make the investigation tainted. But here the facts are entirely different. There is no question of delay of receipt of the occurrence report, rather the contents of the occurrence report and information are incorrect hence this case also is of no assistance to the complainant as the facts of that case were entirely different.

In the instant case although what has been urged by the learned Counsel for the applicants is subject to the evidence being laid at the time of trial and I am not expressing any final opinion regarding the same. But prima facie it does appear that the procedure provided under Sections 157 and 158 Code of Criminal Procedure which were mandatory have not been complied with. Further there was discrepancy in noting down the number of injuries at the time of preparing the panchayatnama and those actually found by the doctor. It appears that the provisions of Section 173 Code of Criminal Procedure were not complied with.

Before parting with the case it is pertinent to mention that the observations made by me above would not affect the trial of the case in any manner whatsoever. However, it does appear that the applicants are entitled to bail.

Let the applicants Ahmad Nabi and Arif involved in Crime No. 92/85 under Sections 147/148/149/302 IPC, Police Station Nehtaur, District Bijnor, be released on bail on their executing personal bonds and furnishing two sureties each to the satisfaction of the Chief Judicial Magistrate, Bijnor. A copy of this order would be issued within days on payment of usual charges.