Decided on June 13,1952

SONIA Appellant
STATE Respondents


- (1.)THIS is a petition for bail by Sonia, Chelia, Kirpal, Jairam, Doongra and Mst. Rukma, who are being tried by the Exra-Magistrate of Barmer under secs. 457, 380, 411 and 414 I. P. C. They had been released on bail by the Extra-Magistrate but the learned Sessions Judge cancelled their bail. Hence this petition. The first four are represented by Shri Inder Nath, and the last two by Shri Mahaveer Singh.
(2.)SHRI Inder Nath argued that the learned Sessions Judge was under a misconception as to the amount of bail which had been asked for by the trial Magistrate and had erred in acting up on a document said be an affidavit on behalf of the complainant but which was never sworn. A further argument was raised that the police report in this case did not comply with the provisions of law and that by itself is a ground for releasing the accused on bail. The same contentions were urged by SHRI Mahaveer Singh.
On behalf of the complainant, a further affidavit was produced today in which it was mentioned that the verification of the affidavit in the lower court had not been made by the Judge owing to an error although the affidavit had been duly sworn. The allegations which had been made in the previous so called affidavit about the apprehension that the accused will tamper with the prosecution evidence and were likely to abscond, were supplemented by certain details in this fresh affidavit.

The record has been called and I find from a perusal of the police report dated 2nd May 1952, on which the Sub-Divisional Magistrate took cognizance and passed on the case to the Extra-Magistrate, that that report does not comply with the provisions of sec. 190 Cr. P. C. That sec. lays down that the District Magistrate or Sub-Divisional Magistrate, or any other Magistrate specially 'empowered, may take cognizance of any offence : (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police-officer; (c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion that such offence has been committed. The sec. obviously purports to lay down that in the case of police reports the police officer shall mention the facts which constitute the offence against the accused. In the present case, all that has been said is that "on the report by Mathuradas that a theft of valuable property took place in his house, the first information report was recorded on 28th December, 1951 and investigation was undertaken whereupon offences under secs. 457, 380, 411 and 414 I. P. C. were proved against Sonia, Chelia, Kirpal, Doongra, Shiv-lal, Baga, Babri, Jairam and Mst. Rukma, and, therefore, action be taken against them according to law. " That is only an assertion that the accused named in the report had committed offences described in certain sections of the Penal Code. It has been held by the Calcutta High Court in Nagendra Nath Chakrabarthi vs. King Emperor (A. I. R. 1924 Calcutta 476) that the report must state facts which constitute the offence and this is a requisite of fundamental importance. Mere assertion that offences under certain sections of the Penal Code have been committed could not be regarded as compliance with the letter and spirit of law, and the facts which if proved would constitute offences should be mentioned. This authority was followed in Re. Shivlingappa (A. I. R. 1930 Bombay 372) that a report which would authorise the Magistrate to take cognizance must contain the facts which would constitute the offences charged. The police report in this case was, therefore, clearly defective and the only inference that can be drawn from it is that the prosecution was not very clear in its mind as to what facts it could establish against each of the accused. All the aforesaid accused were released on bail by the Extra-Magistrate who had been trying the case. In setting aside that order, the learned Sessions Judge has mentioned that the amount of the bond taken from each of the accused was Rs. 500/- which was a paltry amount and may induce the accused to run away to Pakistan. I, however, find from a perusal of the original record of the trial court that the learned Sessions Judge was under a misconception. Jairam and Kirpal were ordered to be released on furnishing a bond of Rs. 2,000/- each with suretiesfor like amount. They were released on the 11th of February 1952. In the case of Sonia, Chelia, Doongra and Rukma, the amount of bond fixed by the trial court was Rs. 5,000/- each and the sureties were also demanded for the like amount. This order was passed on the 15th of February 1952. The bond and the surety amounts of Mst. Rukma were subsequently reduced to Rs. 1,000/- on representation that she was unable to furnish security of the amount demanded by the court. The insufficiency of security mentioned by the lower court as a ground for cancellation of the bail is, therefore, not correct. As regards the all gations that the accused would run away to Pakistan and were trying to tamper with the prosecution evidence, the lower court accepted a document as an affidavit which does not show that it had been sworn. But it has been explained by Gordhandas who has given a further affidavit in this Court that the proceedings for swearing the same had been taken in the Court of Sessions but by some oversight the verification had not been made. There is an endorsement by some clerk on the document filed in the lower court that the affidavit was being sworn but the Judge's signatures are not there. It may be that the verification of the affidavit could not be made by some error. However, taking the document at its face value, the allegations as to the apprehension that the accused will run away to Pakistan or would tamper with the prosecution evidence were very vague. In this Court that document was supplemented by a fresh affidavit which has been filed today. In this document it is stated that Sonia, Chelia, Kirpal and Jairam threatened the witness Narsingh s/o Jaikishen that if the latter deposed against the accused, the aforesaid accused would put an end to the life of the witness Narsingh. In another paragraph it is mentioned that the accused Durga and Kirpal threatened another witness Bhomji S/o Jagroopdas that they would beat the witness if he gave evidence against the accused. In paragraph (4) it is mentioned that all these accused also placed temptations in the way of witness Tamachi so that he may not give evidence against the accused. In the first place, these allegations, if true, should have been supported by affidavits of the persons who had been threatened or were tried to be won over. Their affidavits have not been produced. Further, it is not mentioned in this affidavit of Gordhandas how he came to know about these facts. The source of knowledge of the facts which he has mentioned in his affidavit has not been disclosed. In regard to Tamachi, Mr. Inder Nath stated that his evidence had been recorded in the trial court on 22nd May 1952 while the present petition was pending in this Court. In that statement, he has not stated a word that any temptation was placed in his way to prevent him from giving evidence. Learned Deputy Government Advocate, who appeared in this case, was not able to say that the witness Tamachi suppressed-any of the facts which he was called upon to prove in the court. The allegation that Tamachi was sought to be won over is, thus, not correct. Learned counsel for the State contended that the accused had not put in any counter-affidavit. In the first place, in the lower court the affidavit remained unsworn and this fact was a ground for invoking the assistance of this Court for setting aside the order of the Sessions Judge. The affidavit which was produced in this Court was only done this morning and there was no time for the accused to make any attempt to file a counter-affidavit. It may be mentioned that this case was partly heard on 14th May 1952 and if Shri Gordhandas who has now filed the affidavit would have done so in good time, the accused would have been in a position to consider whether it was necessary for them to file any counter-affidavit. Even as it stands, the affidavit of Gordhandas does not give any date or time or place where the accused are said to have threatened Narsingh or Bhomji, so that the accused, really speaking, were not in a position to deny the allegations except by way of a general denial. That of course is done by their counsel who appear in Court.

It was argued by learned Deputy Government Advocate that by this time some more witnesses have been examined but he did not contend that any more material had been placed on record against the accused besides what was at the time when the learned Extra Magistrate released the accused on bail on 15th February 1952.

The learned Sessions Judge had in support of his order mentioned one circumstance that on the 2nd February 1952 the learned Extra Magistrate proposed to dispose of the petition for bail after considering the evidence in the case, but the said Magistrate did not even complete the statement of Anant Ram and passed the order which he did on the 15th February 1952. I find from a perusal of the record that the examination-in-chief of Anant Ram had been completed before passing the order of release of the accused on bail only the cross-examination had been reserved.

Mr. Hastimal who appears for Gordhandas, who is one of the complainants in this case, drew my attention that even before the 15th, the learned Magistrate had directed the release of Jairam and Kirpal on the nth February 1952. This is so, but the reasons are mentioned in the order releasing them on bail.

In my opinion, therefore, the learned Sessions Judge has erred in interfering with the discretion of the trial court The accused Jairam and Kirpal will be released on bail on their furnishing a bond in the sum of Rs. 2000/- each and two sureties of Rs. 2000/- each. Sonia and Chelia will be released on their furnishing a bond in the sum of Rs. 5,000/ and two sureties each for the like amount.

As regards Doongra and Rukma, it is argued by learned counsel on their behalf that even in the affidavits filed by Gordhandas, for what they are worth, no allegations have been made against Mst. Rukma either that she had taken part in tampering with the prosecution evidence or that she was likely to abscond. As regards Doongra, he urged the same grounds as were urged by Mr. Inder Nath. Learned Deputy Government Advocate urged as regards Doongra that he had made a confession under sec. 164 Cr. P. C. and his case was, therefore, on a different footing. Mr. Mahaveer Singh contended that the confession was inadmissible. It would not be proper at this stage to consider whether the confession was or was not voluntary, but in view of the confession made, I do not think it would be proper to release Doongra on bail. As regards Rukma, she would be released on bail on her furnishing a bond in the sum of Rs. 1,000/- and two sureties for a like amount.

(3.)THE Magistrate is authorised to take any of the accused in custody should it be necessary to do so at any further stage of the case.
The result is that the accused Sonia, Chelia, Kirpal, Jairam and Mst. Rukma will be released on bail during the pendency of the trial as aforesaid. The prayer for Doongra is rejected. .

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