IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.31097 of 2009 HARIOM LAL @ HARIOM PRASAD @ KUMAR HARIOM PRASADson of late Sri Keshav Prasad, R/o Ward No. 1`2, P.O. +P.S Rosera, Dist. Samastipur ……PETITIONER. Versus STATE OF BIHAR………………………………………………O.P. With Cr.Misc. No.32174 of 2009 VINOD DEO SON OF LATE DEONANDAN LAL, RESIDENT OF MOHALLAROSERA BAZAR, P.S. ROSERA, DIST. SAMASTIPUR ….PETITIONER. Versus State of Bihar…. …………………………………………………O.P. ---------- For the petitioner : Mr. Bindhya keshari Kumar, (in Cr.Misc.No.31097/09) Sr. Advocate. For the petitioner (in Cr.Misc. No. 32174/09) Mr. Shivaji Pandey Sr. Advocate. For the State (in both the cases) : Mr. Dashrath Mehta, A.P.P. ----------- 4 02-04-2010 Petitioners in both the criminal miscellaneous petitions have approached this Court under section 438 Cr.P.C. seeking anticipatory bail in view of reasonable apprehension of their arrest in connection with Rosera P.S. case No. 173 of 2008 dated 25.11.2008 registered under section 302/34/120B of the Indian Penal Code as also under section 27 of the Arms Act. Since petitioners of both the cr. Misc. petitions are accused in one and same P.S. case, referred to above, therefore, same were heard together for convenience and the present order will govern both the cases. Deceased Vikash Ranjan son of informant Phulkant Choudhary was a Journalist and was working as local reporter of - 2 - Hindi Daily News paper “Hindustan”. Aforesaid Vikash Ranjan was murdered on 25.11.2008 at 5.45 P.M. for which fardbeyan of the informant was recorded on the same day at 7.30 P.M.. Formal F.I.R. was drawn up on 25.11.2008 itself at 11 P.M. in the night. Both the petitioners are specifically named as accused in the first information report vide annexure-1. According to the prosecution case deceased Vikash Ranjan had exposed, through his news columns, illegal activities of the petitioners at Rosera Bazar, as a result of which conspiracy was hatched up by the petitioners for killing him. Threats were hurled by the accused pesons to the deceased, which he had disclosed to the informant as also to his wife. Supari (contract) of Rs. 3,00,000/-(3 lacs) was given to shooter Pinku for killing the deceased, which all find mentioned in the first information report itself. I have heard Mr. Bindhyakeshari Kumar, learned senior counsel appearing on behalf of the petitioner Hari Om Lal @ Hari Om Prasad @ Kumar Hari Om Prasad, and Mr. Shivaji Pandey, learned senior counsel appearing for petitioner Vinod Deo as also Mr. Dashrath Mehta, learned A.P.P. for the State at length. Learned counsels for the petitioners have submitted - 3 - that even according to the prosecution case petitioners are not alleged to be the assailants of the deceased. Allegation of killing is against some other persons. They submitted that only allegation against the petiotners is that they had hatched up a conspiracy for killing the deceased by giving a Supari (contract) of Rs. 3,00000/- to a shooter Pinku Kumar and aforesaid shooter Pinku Kumar is in judicial custody at Darbhanga jail since 23.7.2007, therefore, no case of murder is made out against the petitioners. Hence, they may be granted privilege of anticipatory bail. They have also referred to certain paragraphs of the case diary to show that in fact allegation of killing the deceased is against other co-accused persons and not against the petitioners. Learned A.P.P. has strongly opposed the prayer for anticipatory bail made on behalf of the petitioners and has submitted that the petitioners are main conspirators and have got the deceased Vikash Ranjan killed by hiring some veteran criminals by giving them Supari (contract). He has also referred to certain paragraphs of the case diary to show that there are sufficient materials to prove the complicity of the petitioners in the crime in question and, therefore, the petitioners do not deserve the privilege of anticipatory bail. - 4 - Mr. Kumar, learned senior counsel, by referring to the judgment of the Apex Court in the case of Gurbaksh Singh Sibbia V. State of Punjab, reported in (1980) 2 SCC 565 = AIR 1980 SC, 1632 has submitted that bail should be a rule and jail should be an exception. He further submitted that there is absolutely no distinction for considering the prayer for anticipatory bail in terms of section 438 Cr.P.C. and bail in terms of section 439 Cr.P.C. On the aforesaid legal proposition, he submits that petitioners are entitled to get the privilege of anticipatory bail in the present murder case. I regret, the submissions made on behalf of the petitioners cannot be accepted and same are completely misconceived. Legal proposition raised on behalf of the petitioners are also fit to be rejected. Now it is well settled that the considerations for grant of regular bail and for anticipatory bail are materially and substantially different. The provisions under section 438 Cr.P.C. cannot be equated with the provisions under section 439 Cr.P.C. Even law makers of our country have drawn certain distinction between section 438 and 439 Cr.P.C. In order to appreciate distinction, it would be apt to quote portions of section 438 and 439 Cr.P.C. which are as follows: “ 438. Direction for grant of bail to person - 5 - apprehending arrest.- [(1) Where any person has reason to believe that he may be arrested on 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 in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application. 439. Special powers of High Court or Court of Sessions regarding bail.- (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: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the - 6 - application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that is not practicable to give such notice.” From plain examination of the aforesaid provisions, it is apparent that 4 factors, besides others, have been specilifically mentioned, which are required to be taken into considerations for grant of anticipatory bail, whereas such factors are not mentioned u/s 439(1) Cr.P.C. Therefore, considerations for grant of anticipatory bail under section 438 Cr.P.C. and bail u/s 439 Cr.P.C. can not be same and identical. A three Judges Bench of Apex Court in the case of Pokar Ram V State of Rajsthan reported in A I R 1985 SC 969, while deliberating about the considerations for grant of anticipatory bail u/s 438 Cr.P.C. vis a vis a bail, while accused is in custody, has observed that when a person is an accused of an offence of murder by using a firearms, the court has to be careful and circumspect in entertaining an application for grant of anticipatory bail. This Court is tempted to quote relevant observations of the Apex Court in the case of Pokar Ram (Supra), which are as follows:- “5. Relevant considerations governing the court’s decision in granting anticipatory bail under Section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as - 7 - also by a person who is convicted and his appeal is pending before the higher court and bail is sought during the pendency of the appeal. These situations in which the question of granting or refusing to grant bail would arise, materially and substantially differ from each other and the relevant considerations on which the courts would exercise its discretion, one way or the other, are substantially different from each other……….” 9 ….When a person is accused of an offence of murder by the use of firearm, the court has to be careful and circumspect in entertaining an application for anticipatory bail ……………….. 11…. Let it be made distinctly clear that status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail. Anticipatory bail to some extent intrudes in the sphere of investigation of crime and the court must be cautious and circumspect in exercising such power of a discretionary nature………” It is well established that the provisions under section 498 of the Code of Criminal procedure 1898, which are equivalent to the provisions under section 439 of the Code of Criminal Procedure 1973, gives an unfettered discretion to the High Court or the court of Sessions to admit the accused to bail. Powers under section 439 of New Code ( S.498 of old Code) are not controlled by the limitations under section 437 of New Code ( S.497 of old Code). Though the discretion to the High Court is unfettered, but - 8 - it cannot be exercised arbitrarily rather it must be exercised judicially. The prayer for bail made on behalf of the accused cannot be allowed on a single consideration rather various circumstances available on record are required to be seen by the court before taking final decision in the matter. In the famous Meerut conspiracy trial, a special Bench of three judges of Allahabad High Court in the case of K.N. Joglekar V. Emperor reported in AIR 1931 Allahabad 504 has observed as follows: “ S. 498 confers upon a Sessions Judge or the High Court wide powers to grant bail which are not handicapped by the restrictions in the preceding section. That discretion is unfettered but of course it cannot be exercised arbitrarily, but must be exercised judicially. There is no hard and fast rule and no inflexible principle governing such discretion. The only principle that is established is that there should be a judicial exercise of that discretion. It is not any one single circumstance which necessarily concludes the decision, but it is the cumulative effect of all the combined circumstances that must weigh with the Court. The considerations are too numerous to be classified or catalogued exhaustively.” In the same judgment at page 507 it has been observed that in a serious non-bailable offence which is punishable with death or transportation for life, grant of bail by a High Court should not be a general rule rather that power may be exercised in exceptional cases particularly when accused persons are on trial. - 9 - Admittedly under the old Code of 1898 there was no specific provision corresponding to section 438 of new Code of 1973 for grant of anticipatory bail. Under the old Code there was a sharp difference of opinion amongst the various High courts on the question as to whether courts have the inherent power to pass an order of bail in anticipation of arrest of an accused. The preponderance view was that the High Court has no such power. The law Commission of India in its 41st report dated Sept. 24, 1969 recommended for incorporating the provisions of anticipatory bail and for giving such power to the High Court and court of Session only. Even in the case of Gurbaksh Singh Sibbia (Supra) Constitution Bench of Apex court has not laid down any law that bail is a rule and jail is an exception. It has also not been held that consideration for grant of anticipatory bail under section 438 Cr.P.C. and bail under section 439 Cr.P.C. should be exactly same and identical. Hon’ble Apex Court has pleased to hold that High Court and the court of Session should be left free to exercise their judicial discretion, while exercising power under section 438 Cr.P.C. It has further been held that there cannot be any straight jacket formula either for granting the privilege of anticipatory bail or for refusing the same. I am tempted to quote - 10 - the following observations of the Apex Court in the case of Gurbaksh Singh Sibbia (Supra) which are as follows; “13 ………………… ….The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant under section 439 of the Code.………………… 15…Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast- iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises”….. 30…………It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.” From the discussion made above about the factual - 11 - position as also legal proposition, it is apparent that petitioners are not entitled to have the privilege of anticipatory bail in the present case. The prosecution of the petitioners is not only under section 302 of the Indian penal Code rather it is also under section 120 B of the Indian penal Code. The petitioners are said to be the main conspirators and are said to have hired shooter by giving Supari (contract) of Rs. 3,00,000/- for killing the deceased Vikash Ranjan, a budding Journalist. Accordingly the prayer for anticipatory bail made on behalf of the petitioners is rejected. . The petitioners must surrender in the court below within a period of four weeks from today and, if so advised, seek regular bail, which may be considered on its own merit without being prejudiced by the present order. It is made clear that the above observations made in this order shall not in any way prejudice the case of either party in the future proceeding/trial. Applications stand dismissed. (Birendra Prasad Verma, J) M.Rahman (AFR)