The Allahabad High Court has allowed the bail of accused of murder stated that the investigating officer is subjected to pressure by the influential persons of society to give report as per their command.
The influence of money in conducting investigations is quite evident and it is a very big hurdle in the free and fair investigation of a crime and case.
A Single Bench of Justice Siddharth passed this order while hearing a Criminal Misc Bail Application filed by Sanjeev alias Kallu Sethiya.
The Court said, This country has inherited the present police system from the British Government. The main objective of British rule was to maintain the status quo by using the police force as an effective weapon to put down any challenge to its authority by iron hand.
Police had to take repressive measures on account of the directions of the British government. The investigation was accordingly carried out keeping in view the direction of the government and their object of ruling this country. Charge sheets were submitted accordingly, which were not the result of free and fair investigation. The fundamental rights of the people of the country were not in existence and the Criminal Procedure Code was designed in a manner, which was not in accordance with the rights of the people of this country before independence. The code nowhere clearly provides that the investigating officer shall necessarily record the statements of witnesses of both the sides, viz, the accused and the informant/complainants, while conducting the investigation into an alleged offence.
After India became independent, it became a welfare state from the police state of the Britishers. The legislations which were framed after independence, were in conformity with the fundamental rights of the people of this country. In the welfare state, the role of the police became more difficult in view of deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, increase in white-collar crimes, etc.
It was suggested by a number of Law Commission Reports that the investigation wing of the police should be separated from the law and order wing, but it has not materialized as yet.
The separation of the investigation wing from the law and order wing has its hazards. If they are separated it would be difficult to control the law and order situation.
The mischief mongers and the criminals will not tear the law and order wing of the police, once it is clear to them but the investigation of the case after a report is lodged will be done by a different wing of police. This is the practical drawback in separation of the wings of police at local level.
The investigating officer is also under pressure of Senior Officers, who do not favourable see any departure from established practice of justifying implication of an accused by collecting evidence in this regard.
They feel it safe to justify implication of an accused by submitting investigation reports against the accused, except in few cases, where they or their political patron is interested otherwise.
In this matter, the first information report eight persons, including the applicant, have been implicated for causing the offence of attempt to murder, rioting armed with deadly weapons and forming illegal assembly for prosecution of a common object of murder.
There is allegation in the first information report that uncle of informant, Mukesh Agarwal, was sitting on pavement of his house and talking to one Swadesh, when co-accused Deepesh Sethiya came on his Scorpio car and co-accused Shubham Tamrakar, came out of the car and directed one car standing to be removed and he started abusing.
Co-accused Akhilesh Vishwakarma was also with him. The father of the informant on hearing the noise came out. At the same time other brothers of Deepesh Sethiya, namely, Rakesh Kumar, Vinod Kumar, Manish Kumar, Manoj Sethiya, Kallu alias Sajiv Sethiya came out.
Deepesh Sethiya and Rakesh Kumar fired which did not hit any one and in the commotion which followed every one tried to protect themselves from Sethiya brothers.
All the accused persons fired on the father of the informant, Ashok Agarwal and uncle of the informant, Mukesh Agarwal. Ashok Agarwal, the father of the informant, suffered a number of injuries and the uncle of the informant suffered injuries in his leg.
Subsequently, father of the informant, Ashok Agarwal died and implication of the accused persons was also made under Section 302 IPC in addition to earlier implication under Sections 147, 148, 149, 307, 302, 504 IPC, Section 7 Criminal Law Amendment Act.
The Court found that the facts of the court are not disputed. The only point requires to be decided is whether the applicant has been assigned any overt role in the incident and can be considered to be member of unlawful assembly formed for the purpose attaining the common object of committing the offence of murder and attempt to murder.
Whether the constructive liability provided under Section 149 IPC can be considered to have been extended to them regarding the alleged crime.
The Court further said that, at the stage of consideration of bail application the court is required to rely upon the material collected by the Investigating Officer during the course of his investigation.
The investigation of criminal cases is rarely fair and the reports of the investigation officer under Section 173(2) are mostly one-sided and against the procedure of fair investigation.
In this case, the Court found that out of ingredients discussed, the third ingredient for constituting offence under Section 149 IPC is not satisfied in this case.
The allegations clearly prove that dispute took place all of a sudden regarding parking of car and from the allegations on record it does not appears that all the accused persons had common object of causing the murder of the deceased and attempt to murder of his brother and had formed unlawful assembly knowing that such offence is likely to be committed.
The dispute took place all of a sudden wherein two co-accused were involved. The injuries do not prove that any indiscriminate firing was made by all the accused persons. The injury caused to the injured was on his leg and will not constitute offence under Section 307 IPC.
In the first information report no weapon used in the alleged offence was assigned to the applicant but allegation of firing was made against him along with co-accused.
The Court observed that,
Keeping the above facts, the court at the time of consideration of the bail application of an accused implicated for committing offence under Section 149 IPC must place reliance on the material collected by the investigating officer.
The court has to consider the case on its merit and there cannot be any straight jacket formula for the same, as stated earlier formation of unlawful assembly having its common object and knowledge of any object are matters of fact and the court should apply its independent mind keeping in view the position of the criminal investigation and the rule of prudence and probability keeping in view the totality of facts and circumstances of the case.
The court has come across a number of cases of bail where ingredients for constituting offence under Section 149 IPC were clearly made but the accused was not implicated under Section 149 IPC. Conversely, the court has also come across cases where the allegation in the first information report and the statements of the witnesses clearly did not prove the presence of the necessary ingredients for constituting offence under Section 149 IPC but accused was implicated for the same.
Court should be cautious of relying upon the Section 149 IPC while considering bail application. The investigating officer applies mostly section 149 IPC as it suits them.
“In view of the above factual position emerging from the record the applicant cannot be said to be rightly implicated under Section 149 IPC for the alleged offences. Two fire arm injuries were found on the body of the deceased, Once on abdomen and on thigh of the deceased. The accused named are above five in numbers, therefore, only because they were more in numbers the offence alleged cannot be considered to be made out against them at this stage. It appears to be a case of sudden provocation and all the members of the alleged unlawful assembly cannot be held liable for the offence committed by any one or two accused named in the first information report.
Respectfully concurring with the ratio of cases cited at the bar but in the light of above consideration, keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the counsel for the parties, larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Dataram Singh Vs State of U.P and another reported in (2018) 3 SCC 22 and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs CBI, passed in SLP (Crl) No 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials in this State and without expressing any opinion on the merits of the case, which may interfere with the discretion of the trial court, the Court is of the view that the applicant has made out a case for bail”, the Court further observed while allowing the bail application.
The Court ordered that,
Let the applicant, Sanjeev @ Kallu Sethiya, involved in Case under Sections 147, 148, 149, 307, 302, 504 IPC and Section 7 Criminal Law Amendment Act, Police Station Mauranipur, District- Jhansi be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified:-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229- A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 CrPC is issued and the applicants fail to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against him in accordance with law under Section 174-A of the Indian Penal Code.
(v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 CrPC. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before the court.