Hari Ram vs The State of Haryana

A.S. Bains, J.—This application is made u/s 438 of the Code of Criminal Procedure, 1973, by one Hari Ram, who is a business man owning a rice-mill alongwith his sons and deals in the purchase and sale of paddy and rice. In the application it is alleged that there is a political feud between Shri Bansi Lal Chief Minister, and Shri Bhajan Lal Cabinet Minister, of Haryana State, and that the applicant belongs to the faction of Shri Bahjan Lal. It is then alleged that an attempt was made by the Chief Minister to involve Shri Bhajan Lal in a rape case in order to tarnish the image of the latter and that for this reason, Chief, Minister is also against the applicant and is bent upon ruining his business on one pretext or the other. It is further alleged that the business premises of the applicant were raided by the Police and the Food and Civil Supplies Officials of Karnal in June, 1973 and the entire stock of paddy and rice worth lacs of rupees, was illegally seized on flimsy grounds, for which litigation is still going on against the applicants in the criminal courts at Karnal, and that the applicant''s licences were cancelled for which he filed two civil writ petitions Nos. 2281 and 2282 of 1975 wherein the operation of the impugned orders cancelling his licences has been stayed by this Court, Earlier to raid of June, 1973, the applicant''s licences were also cancelled by the District Food and Civil Supplies Controller and the applicant had to file writ petitions, which were allowed by this Court and orders were quashed. The applicant was also arrested on 20(sic) th March, 1974, under the Maintenance of Internal Security Act and he challenged his detention by means of Criminal Writ Petition No. 8O of 1974 but during the pendency of the petition, his detention order was withdrawn by the Government.

On 12th May, 1975, the applicant was arrested by the Karnal Police in two cases, FIR. Nos. 537 of 1974 and 187 of 1975, concerning the theft of cooper electric wires. The applicant was remanded by the Judicial Magistrate to police custody till 17th May, 1975, and was released on bail on 17th May 1975. The applicant has thus alleged that during this period of five days he was tortured by the police by third degree methods in order to compel him to give a statement against Shri Bhajan Lal according to their dictates. It is further alleged that on the night between 14th and 15th May, 1975, the applicant was put in a police van, which was full of police officials under the command of Chaudhary Ranjit Singh Inspector C .I.A. Staff, and was taken to a jungle, where one police official put the barrel of a rifle against his chest while a number of other officials held him, and then he was told that he was going to be shot dead if he did not agree to make a statement as desired by the police. Due to torture and fear of death, the applicant broke down and was consequently brought back to the C.I.A. Staff Headquarters where Shri Y Hari Shanker Senior Superintendent of Police Karnal, was also present, and was made to read a statement, which was being rape-recorded, involving Shri Bhajan Lal in a conspiracy to assassinate the Chief Minister of Haryana. He told this woeful story to his son Jai Parkash, when he was allowed to meet him in the morning of l5th May, 1975, and that his son Jai Parkash sent a letter to the Prime Minister and Home Minister of India informing them of all this happening. On 17th May, 1975, as stated earlier, the applicant was released on bail. It is in these circumstances that the applicant has made this application u/s 438 of the Code of Criminal Procedure, 1973 in this Court for issuance of a direction to the Respondent-State that in the event of his arrest ha shall be released on bail.

These allegations are denied on behalf of the Respondent-State by Sarvshri Avinash Chander Deputy Inspector General of Police, Y. Hari Shankar Senior Superintendent of Police Karnal, Ranjit Singh Inspector C.I.A Staff Karnal and Banar Singh Assistant D.I.G. (C.I.D.), who have filed their affidavits. The Petitioner has filed counter-affidavits also The allegations of false implication, torture and harassment of the applicant due to his association with Shri Bahjan Lal have been denied by the Police officials in their affidavits. It is, however, admitted by them that the applicant was arrested on 12th May, 1975 in two theft cases-First Information Reports Nos 537 of 1974 and 187 of 1975-and was released on bail by the trial Court on 17th May, 1975 ; and that he was interrogated by the Senior Superintendent of Police regarding the plot to assassinate the Chief Minister and his voice was tape-recorded. Para 1 of the affidavit filed by Shri Y. Hari Shankar Senior Superintendent of Police, is reproduced below:

On the basis of an intelligence report requisite secret information was conveyed to me by a high official of intelligence Department, Haryana, that a plot had been hatched to assassinate the Chief Minister, Haryana, and that Shri Hari Ram, the applicant, was a party to it. I was required to interrogate him and report. For this purpose I went to the C.I.A. Staff Headquarter, Karal, on 14th May, 1975 where the applicant was then confined. I took him over and interrogated him in a separate room where nobody else was present. On my interrogation he made a statement which was tape-recorded. On the following day I sent a report as directed. It will not be in the interest of any future action to disclose the statement which the applicant made to me during my interrogation or the contents of the report- I submit that the statement which the applicant made was voluntary. Allegations made in para 16 of the application are all baseless. In view of the aforesaid facts there is no question of any mental state. He was perfectly normal, Ch. Ranjit Singh did not at all tell me that the applicant had been properly dealt with and he would now do whatever we wanted him to do.

It is admitted that in a rape case of Smt. Kailasho prosecutrix, F.I.R. No. 94 dated 5th September, 1974 Police Station Urlana, Shri Bhajan Lal, the Minister''s name was involved. The factum of cancellation of applicant''s licences and (his earlier prosecutions is also admitted. It is further admitted that the applicat filed the writ petitions in this Court which are pending ; and that he was detained under the Maintenance of Internal Security Act and later on the detention order was withdrawn.

Mr. Anand Swaroop, Learned Counsel for the applicant, has contended that the applicant has a reasonable belief that he may be arrested on an accusation of having committed a non bailable offence in order to harass him and to extort any other false statement from him; and that, in the circumstances, it is a fit case where direction u/s 438 of the Code of Criminal Procedure, 1973, should be issued by this Court.

Mr. C.D. Dewan, Learned Counsel for the State, contends that apart from the theft case, in which the applicant was released on bail on 17th May, 1973, no other case is pending against the applicant and that relief u/s 438 of the Code of Criminal Procedure cannot be claimed by the applicant. The allegations of torture etc. are denied by the respectable police officers of the State and it is averred that the statement, in question, was given voluntarily by the applicant.

I have carefully considered the arguments advanced by the Learned Counsel for the applicant as well as the State. It is necessary to reproduce Section 438 of the Code of Criminal Procedure to determine its scope which reads as under:

Direction for grant of bail to person apprehending arrest. (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under Sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under Sub-section (3) of Section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-section (1).

From the reading of this section, it is evident that when any person has a reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he can either apply to high Court or the Court of Session for a direction that in the event of his arrest, he shall be released on bail and that the High Court or the Court of Session while making such a direction may impose such conditions as it may think fit including the conditions which are enumerated in the section itself or which may be imposed under Sub-section (3) of Section 437. This is a new provision added in the Code of Criminal Procedure, 1973, after amendment. In the old Code there was no such provision, To interpret this section, it is necessary to go into the circumstances which impelled the legislature to enact this provision. Para 39.9 of Forty-first Report of Law Commission of India, Volume-I, page 320, which is on the point, is reproduced as under:

39.9 Anticipatory bail.-The suggestion for directing the release of a person on bail prior to his arrest (commonly known as '' anticipatory bail ") was carefully considered by us. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter.

In order to settle the details of this suggestion, the following draft of a new section is placed for consideration:

�497-A. Direction for grant of bail to person apprehending arrest

(1) When any person has a reasonable apprehension that he would be arrested on an Accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section. That Court may, in its discretion, direct that in the event of his arrest, he shall be released on bail.

(2) A Magistrate taking cognizance of an offence against that person shall, while taking steps u/s 204(1), either issue summons or a bailable warrant as indicated in the direction of the Court under Sub-section (1).

(3) If any person in respect of whom such a direction is made is arrested without warrant by an officer in charge of a police station on an accusation of having committed that offence, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, such person shall be released on bail.

We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted. But we found that it may not be practicable to exhaustively enumerate those conditions, and moreover, the laying down of such conditions, may be construed as prejudging (partially at any rate) the whole case. Hence we would leave it to the discretion of the Court and prefer not to fetter such discretion in the statutory provision itself. Superior Courts will, undoubtedly, exercise their discretion properly, and not make any observations in the order granting anticipatory bail which will have a tendency to prejudice the fair trial of the accused

From the reading of this para. it is evident that the Law Commission was of the view that the situation for anticipatory bail sometimes arises because influential persons try to implicate their rivals in false cases for the purpose of disgrading them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. On this account the suggest on of the Law Commissions on was accepted by the legislature and a new Section 438 was added in the Code It was also found by the Law Commission that it may not be practicable to enumerate all the conditions under which the bail can be granted by the Court and as such it was left to the discretion of the Court to exercise unfattered powers in certain situations. A Division Bench of this Court in Messrs Everest Woolen Mills v. The State of Punjab (1966) 68 P.L.R. 440, has held as under:

That the objects and reasons of a statute cannot control the plain meaning of a statutory language: they can only be referred to for the limited purpose of discovering the historical background leading up to the legislation in order to understand the mischief sought to be remedied, and that too if there is some ambiguity in the language of the Act." Their lordships of the Supreme Court in Firm Amar Nath Basheshar Dass Vs. Tek Chand, have observed as under:

Although Courts are not concerned with the policy of the Legislature or with the result of giving effect to the language of the statute, it is their duty to ascertain the meaning and intendment of the Legislature. In doing so, Courts will always presume that the impugned provision was designed to effectuate a particular requirement and not that it was intended to negative that which it sought to achieve.

To the same effect is the authority in The Bengal Immunity Company Limited Vs. The State of Bihar and Others,

From these authorities, it is now clear without any manner of doubt that the object of inserting a provision can be locked into. From the report of the Law Commission, it is quite clear that since the Courts were of the view that there is no provision for anticipatory bail in the old Code and in order to cone with the situations that arise for anticipatory bail this new provision was added in the Code. As the Law Commission has observed that sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days and that this may also happen on account of political rivalry. Hence, the necessity for granting anticipatory bail arises in such cases. The language of the provisions of Section 438 is also very clear if a person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he can apply for anticipatory bail to the High Court or the Court of Session. The word ''reason to believe'' is not defined in the Code of Criminal Procedure It is however, defined in Section 26 of the Indian Penal Code which is as under:

A person is said to have "reasons to believe" a thing, if he has sufficient cause to believe that thing but not otherwise." 10 In the present case, there is sufficient cause for the applicant to believe that he may be arrested on an accusation of having committed a non bailable offence. Admittedly, he was arrested on 12th May, 1975 and was released on bail on 17th May, 1975, and on the might of 14th and 15th May, 1975 his statement has been tape-recorded about the conspiracy relating to the murder of Haryana Chief Minister in which the name of Shri Bhajan Lal is mentioned. It is also admitted that the licences of the applicant were cancelled and the writ petitions against that action are pending in this Court, which stayed the operation of the impugned order. It is further admitted by the Respondents that the applicant was detained under the Maintenance of Internal Security Act and was released from detention after he had filed criminal writ petition in this Court. As such, the applicant has a sufficient reason to believe that he may be arrested in some non-bailable offence.

The argument of the learned Additional Advocate General is that even if the applicant has a sufficient reason to believe that he may be arrested in some non-bailable offence, no such direction should be given by this Court in his case u/s 438 because his antecedents are not good he may jump bail or tamper with the evidence or indulge in crimes of more serious nature and if he is to be accused of an offence which is disclosed by his own voluntary statement tape-recorded by the Senior Superintendent of Police he would abuse his liberty since according to his own statement he is also a partner in the conspiracy to assassinate the Haryana Chief Minister. In this regard he cited The The State Vs. Captain Jagjit Singh, , and also placed his reliance on Section 437 of the Code of Criminal Procedure. He also cited Amir Chand and Anr. v. The Crown AIR 1930 E.P. 53. It is not applicable to the facts of the present case. It deals with only the power of the Courts to grant the anticipatory bail. Since there was no such provisions in the old Code, the Full Bench of this Court held that unless a case is registered against a person and warrants of arrest issued and there is an actual restraint, bail cannot be granted. Hence this authority is of no assistance. Captain Jagjit Singh''s case (supra) is also distinguishable. The facts of the case are different than the present case. There the case was registered and an ex-Army Captain was involved. The circumstances which are in the present case were not present in that case. There was no involvement of any Minister. There was also no allegation of any political faction etc. Hence this case also cannot be of any assistance in the present case. Section 437 of the Code of Criminal Procedure only deals with the cases where bail may be granted in non-bailable offences.

I find no merit in the contention of the Learned Counsel for the State. It is true that no case is yet registered against the Petitioner and a case in which he was arrested, he was allowed bail by the trial Court but there is sufficient ground for the applicant to believe that he can be arrested of some-non-bailable offence. The tape-recorded statement which the applicant is alleged to have given, is admitted and it is in such circumstances that a direction can be issued u/s 438 of the Code of Criminal Procedure. About the contention that he would be accused of a conspiracy to murder the Chief Minister, the argument put forward by the State is fallacious. No case is registered against the Petitioner or any other person named in the statement. It was open to the authorities that when such a conspiracy to comment a heinous crime like that of murdering a Chief Minister was unfolded by the applicant, to register a case against him and to arrest him in that case but the fact remains that neither a case was registered against the applicant nor his bail was opposed on this account by the State on 17th May, 1975.

Liberty of a citizen is a vary cherished right. No democratic society can function if the liberty of a citizen is not guaranteed. The citizens are not to be deprived of their liberty except by due process of law. That is why the founding fathers of the Constitution made it as one of the most important fundamental rights. While issuing a direction u/s 438 of the Code, the antecedents of a citizen are not to be gone into. No doubt the applicant has a shady past. The Supreme Court in Y.C. Gupta v. The State of Punjab," dated l5th May, 1959, has observed as under:

There can be no doubt that Hari Ram, on the findings of the Courts below, in an infamous person, with an unsavoury reputation, a person capable of making false allegations. We would have no hesitation in saying, having regard to the past of this witness, that we would not convict any individual on his testimony. It is unnecessary to say, in stronger words, our complete lack of trust in this witness, and if the conviction of the Appellant depended on his evidence, we would have no hesitation in setting it aside." The High Court while commenting on the evidence of the applicant has observed as under:

It is no doubt true that Hari Ram is not a person of high moral character. He has been prosecuted for black marketing on more than one occasion He was fined for stealing canal water." No doubt the applicant was also chalaned twice or thrice, by selling sugar in black market and was fined Rs. 200/- in one of those cases etc. But for this reason he cannot be treated differently. His shady past is irrelevant for deciding the present application.

For the aforesaid reasons, I allow this application and direct that in the event of his arrest in some non-bailable offence, the applicant shall be released on bail subject to the conditions that he shall be available to the police for interrogation purposes as and when required by them ; that he shall remain within the reach of the police and the Court and shall not tamper with the evidence or directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; and that he shall not leave India without the previous permission of the Court nor shall he indulge in any offence during the period he remains on bail. However, the authorities are at liberty to apply for the custody of the applicant if he contravenes any of the said conditions or if he is required for the purpose of effecting recoveries of incriminating material in a case of which he may be accused of my above said observations will not in any way affect the merits of the case of which he may be accused of.