V.K.JHANJI, J. - (1.) IN F.I.R. No. 216 dated 26.4.1994, P.S. Civil Lines, Hissar, under Sections 302/201, Indian Penal Code, Sessions Judge, Hissar, refused to grant concession of pre-arrest bail to Dr. Balbir Singh, but gave this concession to the respondents namely Gumesh Bishnoi, brother of Dr. Balbir Singh and Ashok Kumar son of Dr. Balbir Singh, subject to the condition that they would join investigation in the case as and when called and shall comply with the other conditions as mentioned in sub-section (2) of Section 438 Cr.P.C. Feeling aggrieved of the order, the State has filed this petition under Section 439(2) Cr.P.C. praying that the impugned order be set aside and pre-arrest bail allowed to the respondents be canceled.
(2.) THE facts which have given rise to this petition are as under :- Gurmesh Bishnoi, respondent No. 1 herein, who retired as Chairman of Haryana Public Service Commission is, by profession, an Advocate. He alongwith his brother, Dr. Balbir Singh and Ashok Kumar, respondent No. 2 herein, are residing in House No. 101, Sector 15-A, Hissar. In the early hours of morning on 25.4.1994, one Ram Dial, aged 16/17 years, employed as servant, was found dead in the house of the respondents. According to the averments made in the petition, Dr. Balbir Singh on the advice of his brother, Gurmesh Bishnoi, went to Adampur to meet his brother-in-law Ram Kumar, who actually had got employed the deceased as a servant in the house of respondents. At Adampur, Dr. Balbir Singh and Ram Kumar contacted Raghu Nath, brother of the deceased and informed him with regard to death of his brother. Dr. Balbir Singh and Ram Kumar brought Raghu Nath by car to Hissar. The police was not informed and the dead-body was taken to the General Hospital. The Medical Officer on duty informed the police. The police then conducted inquest proceedings. Raghu Nath, brother of the deceased, did not suspect any foul play at that time and stated that Ram Dial has died either by consuming some poison or due to bite by some poisonous animal. The dead-body was subjected to post-mortem examination, when it revealed a number of abrasions and the cause of death was found to be suffocation (smothering) which was ante-mortem in nature and sufficient to cause death in the ordinary course. Following is the extract of the post-mortem report : "5/RJ, KB/94. POST MORTEM REPORT Name : Ram Dyal Father's name : Surat Ram Caste : Bishnoi Residence : Rano Sar Kalan P.S. Dhormina Sex : M. Age : About 16 years. Date : 25.4.1994. Distt. Hissar. Body brought by : Ranbir Singh C.N. 1775. Body identified by : Raghu Nath S/o Surta Ram Balbir s/o Khyali Ram 101, Sector 15-A, Hissar. Where brought 101, Sector 15-A, Village Thana Distt. G.H. Hissar. Death : On 25.4.1994 at 10.30 A.M. Examination of Body : 25.4.94 at 2.00 p.m. Brought Dead. External Appearance : (1) Length of body : 5' (2) Mark at Ligature on None. Neck and Jts. Section etc. : (3) Condition of subject stout emaciated decomposed etc. clothing : Body of a mid-built and nourished male. Wearing one shirt, Baniyan, a pain at trousers; P.M. staring is that on Ex.prudent. Parts, f. Mouth closeted. Pupils. S.Mates and conjunctive is congested. Brownish coloured Discharge and hair (broken) Sticking at angles and mouth that Spnireter, is relaxed. Lower part of emal, canal is visible. Clotted blood that around amt. and near carytuins Cyanos is in that in eyes balls (all) Face and neck is congested. face is stodded blood. 5/RJ/KB/94. H-CRANIUM AND SPINAL CORD : N.B. The spinal cord need not be examined unless any indication at disease or injury exists. 5. Scalp skull and vertebra. - Brain Matter 6. Membranes - Brain Spinal Cord. III. THORAX - External injuries. (1) Wall ribs and Cartlidges (Healthy) (1) Multiple abrasions thi. on scalp, on scalp on parietal and occipital region Brownish red Blood is clotted. Hair are absent from root. From the respective areas, on dissection, the s/e tissue is permeat etc. i.e. Blood. (2) Pleurae (Congested and healthy) (2) Multiple abrasions that on Lt. upper arm on pesterulat aspect 'c' clotted. Brownish red blood on dissection Th. tissue is permeated C. blood. (3) Larynx and tracheae. Congested and health (3) Abrasions that in a semi-lunar pattern on Lt. upper arm on Pest. aspect. on Dissection thi. tissue is permeated. 'c-bed. (4) Right lung Congested and healthy. (4) Abrasions that in a semi-lower shape on lower part at back. On dissection the tissue. is Permeated 'c bid. bid. (5) Left lung. (Petectnal hges that in both lungs. (6) Pericardium Heart Large vessels. (Congested and healthy.) 5/RJ./KB/94. IV ABDOMEN. (1) - Healthy (2) Peritoneum Congested and healthy. (3) Mouth Pharynx and Oesophagus. Congested. Reddish brown discharge coming out of both angles at mouth. (4) Stomach and its contents. Empty. (5) Small intestines and their contents Contains semi digested food. Partiches. (6) Large intestines and their contents. Contain facial matter. (7) Spleen. Congested and healthy. (8) Kidneys. - (9) Bladder. Empty. (10) Liver. - (11) Organs at generation External and. NAD (As described) V. MUSCLES, BONES, JOINTS : Injury Diease or Deformity As described. VI REMARKS BY MEDICAL OFFICER : The cause of death in our opinion is death due to suffocation is ante-mortem in nature, sufficient to cause death in an ordinary course of nature. Sd/- Dr. Rama Jain, M.O. G.H. Hissar. 25/4. Sd/- Dr. KVL Bhushan M.O. G.H. Hissar, 25/4. Handed over to police : (1) Dead body after doing PME. Well stitched 'c' its belongings. (2) C.C. at PMR N. 5/RJ/KB/94. (3) P.P. No. (1) to (16) duly signed by me. Sd/- Ranbir Singh 1775 (in Hindi) 'c' in few minutes. 'c' in 24 hrs." Initially, the police had not registered any case and only a report was lodged in the daily diary. In this report, recorded at the instance of Raghu Nath, it was stated that Dr. Balbir Singh had gone to Adampur to inform him that Ram Dial had died either after taking poison or having been bitten by some poisonous animal/insect. However, on receipt of the report regarding cause of death, First Information Report was registered on 26.4.1994. During investigation of the case, police recovered blood stained earth, grass and bunch of hair from the spot. The dead-body of Ram Dial, after post-mortem examination, was taken to his native place and buried, as he belonged to Bisnoi community who bury their dead. The dead-body was exhumed on 29.4.1994 in the presence of Sub Divisional Magistrate, and the clothes of the deceased and Viscera were taken, sealed and sent to the Chemical Examiner whose report revealed negative test for common poison. Dr. Balbir Singh, his son-Ashok Kumar (respondent No. 2 herein) and his brother, Gurmesh Bishnoi (respondent No. 1 herein) apprehending their arrest in the aforesaid F.I.R. moved an application for pre-arrest bail before the Sessions Judge, Hissar, who declined the concession of bail to Dr. Baljit Singh, but allowed this concession to the respondents. Dr. Balbir Singh feeling aggrieved of this order, filed Cr. Misc. Petition No. 13799-M of 1994 and this Court on 19.9.1994 affirmed the order of Addl. Sessions Judge declining concession of bail to Dr. Balbir Singh. The present petition has been filed by the State, praying for cancellation of bail allowed to the respondents. In opposition to the prayer made by the State for cancellation of bail, respondent No. 1 in his written statement has stated that the present Chief Minister of Haryana has been inimically disposed of towards him, his relatives, including his brother, Dr. Balbir Singh. He has further stated that in March, 1990, he was appointed as a member of the Haryana Public Service Commission, whereafter in August, 1984, he became the Chairman of the said Commission and retired as such after a six year term in the month of August, 1990. According to him, the Chief Minister of Haryana had become totally hostile and revengeful towards him because he had carried out his functions as Chairman of the Haryana Public Service Commission, independently and without any fear or favour, firmly resisted all political interference and earned wrath and displeasure of the Chief Minister who treated it as an act of treachery and betrayal. Respondent No. 1 has given the details of the cases registered against him between the period from 27.10.1991 to 9.11.1991. He has also made a mention that on two different occasions, vide orders dated 25.7.1991 and 27.4.1992 passed in Criminal Misc. No. 8178-M of 1991 and Criminal Misc. No. 3666-M of 1992 respectively, this Court allowed bail to him in the cases registered against him. Reference has also been made to his illegal detention as also that of his brother, Dr. Balbir Singh and filing of Habeas Corpus petition and the enquiry marked thereon to the District and Sessions Judge on 13.12.1991. Thus, according to him, he is being falsely implicated in the present case. However, in the written statement, he has admitted that he has been residing in the house where the servant was found dead. As regards taking of the body to the hospital and not informing the police, he has averred that "as the cause of death of Ram Dial was not known to Dr. Balbir Singh or to Ram Kumar of Raghunath, it was a matter of rational guess-work by lay persons. Apparently the body did not bear any injuries which were homicidal or serious or grievous. It was lying in the open lawn accessible to other also, particularly at the odd hours. Hence it shall be unjust to smell a rat, if any one opined that the death was due to poisoning. It is no co-incidence that Raghunath, a close relation of the deceased himself verified the facts at the spot and thereafter made the statement in the inquest referred to in this paragraph. The so-called injuries bear no nexus with the death or with the alleged cause of death, i.e. smothering. These injuries are rather consistent with the version given by Raghunath in the first place. These could also be identified as injuries by mistake by a fresh doctor, though the same could otherwise be the result of ant-bites. In any case, these superficial abrasions do not advance the case of the prosecution at all."
(3.) MR . Sibal, appearing for the State, contended that grant of anticipatory bail to the respondents is totally unjustified. According to him, Dr. Balbir Singh is suffering from polio disease and his one leg and one hand are very seriously affected by the disease. Further, involvement of more than one person cannot be ruled out and the death must have been caused not only by Dr. Balbir Singh, but other family members namely Gurmesh Bishnoi and Ashok Kumar. He took me through the relevant material on record and placed reliance upon a decision of Supreme Court in Pokar Ram v. State of Rajasthan, AIR 1985 SC 969.;