This case relates to the grant of anticipatory bail under Sec. 438 Cr.P.C., in case of custodial abuse and death by a police officer.
Brief Facts of the Case
An FIR had been lodged against the appellant by the brother of Balwant Singh (deceased) for the offense punishable under Sec. 364, 201, 344, 219, and 120-B of the IPC and subsequently under Sec. 302 as well.
In 1991, Balwant Singh (Brother of Informant) was illegally abducted from his residence at Mohali and was severely tortured in custody, by and at the behest of the appellant. Further, a false FIR had been registered against the victim, alleged to have escaped from the place, he was brought.
The appellant apprehending arrest with FIR No. 77, filed an anticipatory bail application before the Additional Sessions Judge, Mohali. The allegations in the FIR were under Sec. 364, 201, 344, 219, and 120-B of the IPC. The Judge granted the anticipatory bail in favor of the appellant.
The appellant was, further, apprehending arrest under Sec. 302 of the IPC, thus, approached the Additional Session Judge, Mohali for anticipatory bail. The three co-accused in the FIR No. 77 submitted applications before the Chief Judicial Magistrate (CJM), Mohali to become approver against the appellant for grant of pardon, but was dismissed.
Later, the other two co-accused also applied to become approver, before the CJM, Mohali and was allowed. Based on their statement, an application was submitted seeking the addition of Sec. 302 IPC. This application was allowed.
The aforesaid application for anticipatory bail for an offense under Sec. 302 was dismissed by the Additional Sessions Judge. The appellant, further, approached the High Court of Punjab and Haryana with a similar application and was dismissed there as well. Thus, the appellant preferred the present appeal.
It was submitted that the FIR against Appellant was filed with mala fide intention and at the instance of the party in power in the state. Further, the FIR is not maintainable as it was the second FIR registered after the delay of 29 years of the alleged incident. Earlier attempts to falsely fabricate the appellant failed and similar FIR for the very incident with similar allegations was quashed by the Court in the decision of State of Punjab v. Dawinder Pal Singh Bhullar.
The informant placed heavy reliance on the liberty reserved in favor of the father of Balwant Singh to file fresh proceedings, but his father did not file any fresh proceedings during his lifetime. The present FIR was lodged after the death of his father and 9 years after the Davinder Pal Singh Bhullar case and 29 years after the incident, by his brother, and that too with political support.
When the FIR was initially lodged, the appellant was charged under Sec. 364, 201, 344, 219, and 120-B of the IPC. It is the investigation agency, who with malafide intentions pressurized the co-accused turned approver and based on their statement, offense under Sec. 302 was also added.
The appellant, further, contended that there exists jurisdictional error in the present FIR been filed. This FIR had been file in Mohali on the directions of SSP, Mohali, although all the events as per the compliant happened in Chandigarh. As per Sec. 177 and 178 of Cr.P.C., the ordinary place of investigation and trial is within whose jurisdiction, the offense has occurred. The present FIR No. 77 and proceeding initiated thereafter were a blatant abuse of process, mala fide, and misuse of policing power.
The procedure that needs to be followed while adding the charge under section Sec. 302 IPC, was not followed as per the decisions of this Court in the cases Pradeep Ram v. the State of Jharkhand and Sushila Aggarwal v. State (NCT of Delhi). The Magistrate who allowed the addition is unknown to the procedure to be followed.
The Respondent submitted that the offense under Sec. 302 IPC had been added after obtaining permission from the Magistrate. The Magistrate allowed the application to add charges under Sec. 302, only after considering the material available on record. Thus, a prima facie case can be made out against the appellant.
It is, further, submitted that as per the series of decisions of the Court, mere delay and political vendetta cannot be the grounds for quashing the criminal proceedings. When the allegations are very serious and allegations against a police officer of misuse of power and position, kidnapping and killing of an innocent person, the truth must come out.
The present FIR cannot be said to be the second FIR. The present FIR was by the brother of the deceased considering the liberty reserved by the Court in the case of Davinder Pal Bhullar Case.
On behalf of the informant, it was submitted that the appellant was an influential person and can tamper with the evidence, thus, is not fit case to grant anticipatory bail to the appellant under Sec. 438 Cr. P.C.
Observation by the court
The Court observed that the many a time delay may not be fatal to criminal proceedings, however, it depends on the facts and circumstance of each case. A long delay of 29 years as in the present can be a valid consideration for the grant of anticipatory bail.
The liberty reserved for the father of the deceased to file fresh proceedings was in favor of the father of the deceased who had earlier filed a petition before the High Court under Sec. 482 Cr. P.C. This Court reserved the liberty to take recourse of fresh proceedings by observing that if permissible in law. The present proceedings by the informant-brother of the deceased are permissible in law or not had yet to be considered by the Court in pending proceedings for quashing the impugned FIR.
Looking at the status of the appellant that he had retired in 2018 as Director General of Police after serving for 30 years and the incident is of the year 1991 and the present FIR was not initially for an offense under Sec. 302 and the allegations were only for the offense under Sec. 364, 201,344, 330, 219, and 120B of the IPC, for which order of anticipatory bail was granted. The allegations under Sec. 302 was added on the statement of approvers only. Thus, the appellants made out the case for anticipatory bail.
The decision of the Court
The bail was granted on furnishing personal bond in the sum of ₹ 1,00,000 and two sureties of the like amount and to surrender the passport and to cooperate with the investigation to quash the impugned FIR.
The Appeal is allowed to the aforesaid extent.
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