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PETITIONER: NIRANJAN SINGH & ANR.

       Vs.

RESPONDENT: PRABHAKAR RAJARAM KHAROTE & ORS.

DATE OF JUDGMENT10/03/1980

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SEN, A.P. (J)

CITATION:  1980 AIR  785            1980 SCR  (3)  15  1980 SCC  (2) 559

ACT:      Criminal  Procedure  Code  1973,  Section  439(1)  (a)- Enlargement on  bail-Person to  be accused of an offence and in custody-When is a person in custody.      Bail-Orders on bail application-Detailed examination of evidence, elaborate documentation to be avoided.      Suspension-Police Officers-Serious  charges framed by a criminal  court-Placing   such  officers  under  suspension- Necessity of.

HEADNOTE:      The petitioner  was the  complainant in a criminal case where the  accused were  two sub-inspectors and eight police constables  (respondents   1  to   10).  The   case  of  the complainant was  that  in  pursuance  to  a  conspiracy  his brother was  way laid  by a police party consisting of these respondents. It  was alleged  that he was caught and removed from the  truck in which he was travelling, tied with a rope to a tree and one of the sub-inspectors fired two shots from his revolver  on the  chest of  the deceased  at close range which killed  him instantaneously.  Having perpetrated  this villainy  the   policemen  vanished   from  the  scene.  The respondents’ version  was that  the  victim  was  himself  a criminal and was sought to be arrested. An encounter ensued, both sides  sustained injuries and the deceased succumbed to a firearm shot.      The State  not having  taken any action, the petitioner was  constrained   to  file   the  private   complaint.  The Magistrate who  ordered an inquiry under section 202 Cr.P.C. took oral evidence of the witnesses and found that there was sufficient ground  to proceed  against all  the  respondents under sections  302, 341,  395 and  404 read with section 34 IPC. Non-bailable warrants were issued for production of the accused and  the Magistrate  who refused the bail stayed the issuance of the warrants. The respondents moved the Sessions Court  for  bail  which  granted  bail  subject  to  certain directions and conditions. Feeling aggrieved, the petitioner moved the  High  Court  but  it  declined  to  interfere  in revision but  imposed additional  conditions to  ensure that the bail  was not  abused and  the course of justice was not thwarted.      In the special leave petition, the petitioner contended

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that the  respondents could  not be released on bail as they were not  in custody  and being  on bail  they were  abusing their freedom by threatening the petitioner. ^      HELD: 1. Custody, in the context of section 439 Cr.P.C. is physical  control or  at least  physical presence  of the accused in court coupled with submission to the jurisdiction and orders  of the  court. He  can be  in custody not merely when  the   police  arrests   him,  produces  him  before  a Magistrate and  gets a  remand to judicial or other custody. He  can  be  stated  to  be  in  judicial  custody  when  he surrenders before  the court  and submits to its directions. [19 F-G] 16      2. A  responsible Government, responsive to appearances of justice,  would have  placed police officers against whom serious charges  had been  framed by a criminal court, under suspension unless  exceptional  circumstances  suggesting  a contrary course  exist. A  gesture of  justice to  courts of justice is the least that a government owes to the governed. [20 H-21 A]      3. Detailed  examination of  the evidence and elaborate documentation of  the merits should be avoided while passing orders on  bail  applications.  No  party  should  have  the impression  that   his  case  has  been  prejudiced.  To  be satisfied about  a prima  facie case is needed but it is not the same  as an  exhaustive exploration of the merits in the order itself. [18 C]      4. Grant  of bail  is within  the jurisdiction  of  the Sessions Judge  but the   court  must not,  in grave  cases, gullibly   dismiss   the   possibility   of   police-accused intimidating the  witnesses with cavalier ease. Intimidation by policemen,  when they are themselves accused of offences, is not an unknown phenomenon. [18 D-E]

JUDGMENT:      CRIMINAL  APPELLATE   JURISDICTION  :   Special   Leave Petition (Criminal) No. 393 of 1980.      From the  Judgment and  Order dated  25-9-1979  of  the Bombay High Court in Crl. Appln. No. 607 of 1979.      Petitioner No. 1 in person.      P. R.  Mridul, S.  V. Deshpande  and N.  M. Ghatate for Respondents 1 to 11.      O. P. Rana and M. N. Shroff for Respondent No. 13.      The Order of the Court was delivered by      KRISHNA IYER,  J. "No one shall be subjected to torture or to  cruel, inhuman  or degrading treatment or punishment" is a  part of the Universal Declaration of Human Rights. The content of Art. 21 of our Constitution, read in the light of Art. 19,  is similarly  elevating. But  romance about  human rights  and  rhetoric  about  constitutional  mandates  lose credibility if,  in practice,  the  protectors  of  law  and minions of  the State  become engines  of terror  and  panic people  into   fear.  We   are  constrained  to  make  these observations as  our conscience  is in consternation when we read the  facts of  the case  which have  given rise  to the order challenged  before us  in this  petition  for  special leave.      The petitioner,  who has  appeared  in  person  is  the complainant in  a criminal case where the accused are 2 Sub- Inspectors and  8 Constables  attached to  the  City  Police Station, Ahmednagar.  The charges against them, as disclosed in the  private complaint, are of murder and allied offences

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under ss.  302, 341,  395, 404  read with ss. 34 and 120B of the Penal  Code. The  blood-curdling plot  disclosed in  the complaint is 17 that pursuant to a conspiracy the brother of the complainant was way  laid by  the police  party on August 27, 1978 as he was  proceeding  to  Shirdi.  He  had  with  him  some  gold ornaments and cash. He was caught and removed from the truck in which  he was travelling, tied with a rope to a neem tree nearby, thus  rendering him a motionless target to a macabre shooting. One of the Sub-Inspectors fired two shots from his revolver on  the chest  of the  deceased at  close range and killed   him    instantaneously.   The   policemen,   having perpetrated this  villainy,  vanished  from  the  scene.  No action was  taken by  the State  against the  criminals. How could  they,   when  the   preservers  of   the  peace   and investigators of  crime themselves  become planned executors of murders?  The victim’s  brother was  an advocate  and  he filed a private complaint. The learned magistrate ordered an inquiry under  s.  202  Cr.  P.C.,  took  oral  evidence  of witnesses at  some length  and held: "Thus taking an overall survey of  evidence produced  before me, I am of the opinion that there are sufficient grounds to proceed against all the accused for  the offences  under ss. 302, 323, 342 read with s.  34   I.P.C."  Non-bailable   warrants  were  issued  for production of  the accused  and the  magistrate who  refused bail, stayed  the issuance  of the  warrants although we are unable to  find any  provision to  enable him  to do so. The police-accused moved  the sessions court for bail and, in an elaborate order  the sessions  court granted bail subject to certain directions and conditions. The High Court, which was moved by the complainant for reversal of the order enlarging the accused  on bail,  declined to interfere in revision but added additional  conditions to ensure that the bail was not abused and the course of justice was not thwarted.      It is  fair to  state that  the case  in the complaint, verified under  s. 202  Cr. P.C. to have some veracity, does not make  us leap  to a  conclusion of  guilt or  refusal of bail. On  the contrary, the accused policemen have a version that the  victim was himself a criminal and was sought to be arrested. An encounter ensued, both sides sustained injuries and the deceased succumbed to a firearm shot even as some of the police  party sustained  revolver wounds  but  survived. Maybe, the  defence case,  if reasonably  true, may  absolve them of  the crime,  although the story of encounters during arrest  and  unwitting  injuries  resulting  in  casualties, sometimes become  a mask  to hide  easy liquidation of human life by  heartless  policemen  when  some  one  allergic  to Authority resists their vices. The police have the advantage that they  prepared the  preliminary record which may ’kill’ the  case   against  them.   This  disquieting  syndrome  of policemen committing crimes of killing and making up perfect paperwork cases of innocent discharge of duty 18 should not  be ruled out when courts examine rival versions. Indeed, we  must emphasise that the trial judge shall not be influenced by what we have said and shall confine himself to the evidence  in the  case when  adjudging the  guilt of the accused. We  were constrained to make the observations above because the  Sessions Judge,  quite unwarrantedly, discussed at  prolix   length  the  probabilities  of  police  party’s exculpatory case and held:           "So it  is reasonable  to hold  that there  was  a      scuffle and  resistance offered  by the victim Amarjeet      Singh before  shots were  fired at  his person  by  the

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    accused No. 1." Detailed  examination   of  the   evidence   and   elaborate documentation of  the merits should be avoided while passing orders on  bail  applications.  No  party  should  have  the impression  that   his  case  has  been  prejudiced.  To  be satisfied about  a prima  facie case is needed but it is not the same  as an  exhaustive exploration of the merits in the order itself.      Grant  of  bail  is  within  the  jurisdiction  of  the Sessions Judge  but the  court must  not,  in  grave  cases, gullibly   dismiss   the   possibility   of   police-accused intimidating  the  witnesses  with  cavalier  ease.  In  our country, intimidation by policemen, when they are themselves accused of  offences, is  not an  unknown phenomenon and the judicial process  will carry  credibility with the community only if  it views  impartially and with commonsense the pros and cons,  undeterred by  the  psychic  pressure  of  police presence as indicates.      Let us  now get to grips with the two legal submissions made by  the petitioner.  The first jurisdictional hurdle in the grant  of bail argues the petitioner is that the accused must fulfil  the two conditions specified in s. 439 Cr. P.C. before they can seek bail justice. That provision reads:      439. (1) A High Court or Court of Session may direct-       (a) that any  person accused  of an  offence,  and  in           custody be released on bail, and if the offence is           of the  nature specified  in  sub-section  (3)  of           section 437,  may impose  any condition  which  it           considers necessary  for the purposes mentioned in           that sub-section,       (b)  that any  condition imposed  by a Magistrate when           releasing any  person on  bail  be  set  aside  or           modified.      Here the  respondents were accused of offences but were not in  custody, argues  the petitioner.  So no  bail, since this basic condition 19 of being  in jail is not fulfilled. This submission has been rightly rejected  by the courts below. We agree that, in our view, an outlaw cannot ask for the benefit of law and he who flees justice cannot claim justice. But here the position is different. The  accused were not absconding but had appeared and  surrendered   before  the   Sessions  Judge.   Judicial jurisdiction arises only when persons are already in custody and seek  the process  of the court to be enlarged. We agree that no  person accused of an offence can move the court for bail under s. 439 Cr. P.C. unless he is in custody.      When is  a person  in custody,  within the  meaning  of s.439 Cr.  P.C. ?  When he is in duress either because he is held by  the investigating  agency or other police or allied authority or  is under  the control of the court having been remanded by judicial order, or having offered himself to the court’s jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to  come to  the realistic  conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of s.  439. This  word is  of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in  court that  the  police  have  taken  a  man  into informal custody but not arrested him, have detained him for interrogation but  not taken  him into  formal  custody  and other like  terminological dubieties  are unfair evasions of the straightforwardness  of the  law. We  need not dilate on

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this shady  facet here  because we  are satisfied  that  the accused did  physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose.      Custody, in  the context  of s. 439, (we are not, be it noted,  dealing  with  anticipatory  bail  under  s.438)  is physical control  or  an  least  physical  presence  of  the accused in court coupled with submission to the jurisdiction and orders of the court.      He can be in custody not merely when the police arrests him, produces  him before  a Magistrate and gets a remand to judicial or  other custody.  He can,  be  stated  to  be  in judicial custody  when he  surrenders before  the court  and submits to  its directions.  In the present case, the police officers applied  for bail  before a  Magistrate who refused bail and  still the accused, without surrendering before the Magistrate, obtained  an order for stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and maybe,  enabled the  accused persons  to circumvent  the principle of  s. 439  Cr.P.C. We  might have taken a serious view of such a course, indifferent to 20 mandatory provisions  by the  subordinate magistracy but for the fact that in the present case the accused made up for it by surrender  before the  Sessions Court. Thus, the Sessions Court   acquired   jurisdiction   to   consider   the   bail application. It  could have  refused bail  and remanded  the accused to  custody, but,  in the  circumstances and for the reasons mentioned  by  it,  exercised  its  jurisdiction  in favour of  grant of  bail.  The  High  Court  added  to  the conditions subject  to which  bail was  to  be  granted  and mentioned that  the accused  had submitted to the custody of the court.  We therefore,  do not proceed to upset the order on this  ground. Had  the circumstances  been  different  we would have  demolished the  order for  bail. We  may frankly state that  had we  been left to ourselves we might not have granted bail  but sitting under Art. 136 do not feel that we should interfere  with a  discretion exercised  by  the  two courts below.      We are  apprehensive  that  the  accused  being  police officers should  not abuse  their freedom and emphasise that the Inspector  General of Police of the State of Maharashtra will take  particular care to take two steps. He should have a close  watch on  the functioning  of the  concerned police officers lest  the rule  of law be brought into discredit by officers of  the law  being allowed  a larger  liberty  than other people  especially  because  the  allegations  in  the present case are grave and even if a fragment of it be true, does  little   credit  to  the  police  force.  It  must  be remembered that  the allegations  are that  the deceased was dragged out  of a  truck to a secluded place later tied to a tree and shot and killed by the police officers concerned.      We hasten  to make  it clear  that these  are one-sided allegations and  the accused have a counter-version of their own and  we do  not wish  to make  any implications  for  or against either  version. The  accused policemen are entitled to an  unprejudiced  trial  without  any  bias  against  the ’uniformed’ force which has difficult tasks to perform.      We conclude  this order  on  a  note  of  anguish.  The complainant has been protesting against the State’s bias and police threats.  We must remember that a democratic state is the custodian  of people’s  interests and  not  only  police interests. Then how come this that the team of ten policemen against whom  a magistrate after due enquiry found a case to be proceeded  with and  grave charges  including for  murder were framed  continue on  duty  without  so  much  as  being

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suspended  from   service  until  disposal  of  the  pending sessions trial?  On whose side is the State? The rule of law is not  a one-way  traffic and the authority of the State is not for  the police  and against  the people.  A responsible Government responsive to appearances of justice, would 21 have placed police officers against whom serious charges had been framed  by a  criminal court  under  suspension  unless exceptional  circumstances   suggesting  a  contrary  course exist. After  all a  gesture of justice to courts of justice is the  least that a government owes to the governed. We are confident that  this inadvertence  will be made good and the State of  Maharashtra will  disprove by  deeds Henry  Clay’s famous censure :           "The arts of power and its minions are the same in      all countries  and in  all ages.  It marks  its  victim      denounces it;  and excites  the public  odium  and  the      public  hatred   to  conceal   its   own   abuses   and      encroachments."      The observations  that we  have made  in the concluding portion of  the order  are of such moment, not merely to the State of  Maharashtra but  also to  the other  States in the country and to the Union of India, that we deem it necessary to direct  that a  copy of this judgment be sent to the Home Ministry in  the Government of India for suitable sensitized measures  to  pre-empt  recurrence  of  the  error  we  have highlighted. N.V.K. 22