Sube Tunde Kachi vs State

A.H. Khan, J.

This is petitioner''s application u/s 498 of the Criminal Procedure Code.

The circumstances under which this application is being given are that the petitioner was arrested in a case u/s 302, Indian Penal Code and after his arrest, an application was moved before the Special Judge, Bhind, who rejected it by his order dated 22-2-1962, on the ground that since the investigation had not been completed he would not consider it. Later on, after the completion of the investigation and the Challan, another application for bail was presented and the learned Sessions Judge, Bhind rejected it on the ground that unless the statements of the eye-witnesses were on the record he would not consider the question of bail. Now the petitioner has filed this application for bail.

Before considering the question of bail on merits, I would like to point out that the approach of the learned Special Judge (Sessions Judge, Bhind) in this case is not correct. According to section 497, Criminal Procedure Code, an application for bail lies as soon as a man is accused of an offence. In fact according to the amendment of the section by Act No. 1 of 1956, a person suspected of commission of the offence can also apply for bail. In this view of the matter, as soon as a person is suspected or accused of an offence, application for bail would lie and must be heard, no matter whether investigation is completed or not. The learned Special Judge is in an manifest error when he thinks that during the investigation, it is not possible for him to grant bail which his order implies. According to sub-section (2) of section 497, Criminal Procedure Code an accused person can be released on bail, "at any stage of investigation" in proper cases.

Regarding the rejection of second application, it is enough to say that at the time of consideration of bail application, it is usually the Police papers that a Court has to study, and, come to some conclusion one way or the other. If after perusing the Police record, the Special Judge thought that the accused should not be admitted to bail, he should have rejected the application at once. But he does not appear to have seen the Police record at all.

Now coming to the merits of the petition, in the first information report that was made it was said about the petitioner that he pointed out Bihari, a person alleged to have shot Manpokhan. But from the statements of witnesses given to the accused by the Police u/s 173 of the Criminal Procedure Code, it appears that the alleged murderer Bihari, very well knew Manpokhan and so there appears to be no need for anybody to point out Manpokhan to the alleged murderer. Witnesses Devlal and Bhure have said in the Police statements that Bihari, alleged murderer used to cultivate the field of Manpokhan. It being so, apparently there is no reason why the murderer would take another person with him for the purpose of identifying Manpokhan.

The record shows that it was Bihari, who after shooting Manpokhan, left his gun-licence and sixteen cartridges on the spot. Taking all these facts into consideration, I would admit the accused to bail.

I, therefore, direct that if the petitioner executes a bond for Rs. 8000 (Rupees eight-thousand) and furnishes security for the like amount to the satisfaction of the Special Judge, he shall be released on bail till the decision of the Special Court.