A.P.CHOWDHRI.J - (1.) FACTS necessary for the disposal of this application under section 439(2) of the Code of Criminal Procedure are that Smt. Akko, filed a complaint in the Court of the Judicial Magistrate Ist class under sections 302 and 120-B, Indian Penal Code, alleging that on March 18, 1985, at 7 p.m. HC Rajpal Singh and Constable Bahadur Singh took away her son Joga Singh to Police Station Dhanaula in connection with a theft case. On March 19, 1985, at 4 a.m. SHO Sudesh Kumar along with the aforesaid police officials came to the complainant's village Badbar and took away Lakha Singh to the Police Station. Shangara Singh and Sher Singh of the village were already present in the police station. Later, Data Singh, Gurnam Singh and Mukhtiar Singh of the village were taken to the Police Station through some police officials In the Police Station SHO Sudesh Kumar gave Rs. 1,000/- to para Singh etc. for effecting a compromise with the heirs of Joga Singh, who had died. He also obtained thumb impressions of Dara Singh etc. on some blank papers. The dead body of Joga Singh was first taken to Civil Hospital, Dhanaula, and from there it was brought to Civil Hospital, Barnala, where Dr. Narotam Singh conducted post-mortem examination. The dead body was then brought by police jeep to village Badbar. It was tried to be cremated, Smt. Akko got scent of it. She raised alarm, which attracted Gurcharan Singh and Joginder Singh etc. Ultimately the &ad body was allegedly cremated by the SHO and two Police Officials HC Rajpal Singh and Constable Bahadur Singh.
(2.) THE unfortunate mother ran from pillar to post. Ultimately, under orders of the District Magistrate, the SDM held an enquiry into the circumstances leading to the death of Joga Singh. He recommended registration of a case against the police officials. Eventually, however, no case was registered and that is how the aforesaid complaint was filed in the court. After recording preliminary evidence the accused were summoned for offences under sections 302/120-B, Indian Penal Code, by order dated June 3, 1988. The accused preferred a revision against the summoning order which was dismissed by learned Additional Sessions Judge by order dated January 30, 1989. The accused have since been committed to the Court or Session, they have been charged and trial is under way. Application for anticipatory bail was made. It was declined by the learned Additional Sessions, Judge, Barnala, vide order dated July 28, 1988, Annexure P. 2, with the observation that the offence alleged was a serious one and no ground for anticipatory bail was made out. After rejection of the revision by the learned Additional Sessions Judge against the summoning order, a fresh application for anticipatory bail was made, which was allowed by the same learned Additional Sessions Judge by order dated February 23, 1989, Annexure P. 3. It was noted in the order that the Public Prosecutor did not oppose the application. It was also stated that the applicants were public servants, that there was no direct evidence regarding commission of the offence, that the case was based on extra judicial confession, which was a weak type of evidence, and that even the District Magistrate had not recommended registration of a case against the accused. The present petition is directed against the said order of learned Additional Sessions Judge granting anticipatory bail to the accused.
(3.) A reply has been filed by way of affidavit of Bahadur Singh Constable, arrayed as respondent No. 3. It is stated therein that at the time of the second application, the accused surrendered in the Court and in a consideration of the material collected against the accused, the learned Additional Sessions Judge granted them bail. He further stated that the concession of bail had not been abused at any stage that the material witnesses were related to the deceased and there was no question of tampering with their evidence. It was also pointed out that SI Sudesh Kumar accused had since been transfered to another range i.e. Jalandhar, and that HC Rajpal Singh been transferred had been transferred from] the police station concerned. It was expressly denied that the accused had threatened any witness from giving evidence.;