KANTA BHATNAGAR, J. - (1.) THE seven petitioners along with a few others, out of whom five have already been arrested, are suspected miscreants of an incident said to have taken place in the intervening night of 17th and 18th September, 1981 at the 'durgah' of Nimba Nimbdi On the basis of the information lodged by Abdul Kayum on September 18, 1981, case under secs 147, 148, 307, 326 and 325 read with 149 Indian Penal Code was registered. Abdul Rahim, one of the injured, succumbed to the injuries sustained by him in the incident on Sept. 21, 1981 and therefore, s. 302 Indian Penal Code was further added against the suspects. It is alleged that on Thursday the 17th Sept. 1981 the complainant and others had gone to Nimba Nimbdi 'durgah' and after 'namaz' were preparing for 'ibadat' when at about 11. 00 P. M. about 20 or 25 persons, armed with axe, hammers, 'burchis' and 'halwanis', entered the Durgah' uttering 'jai Bajrang Bali' and started beating those persons THE Muslims inside the 'durgah' tried to make good thier escape but all of them could not succeed and the rioters, besides giving a beating to them, damaged the articles of the 'durgah' and brokedown the religious pictures and threw them in the mud. Seven persons sustained injuries in that incident, one out of whom viz. Abdul Rahim became serious and expired on September 21, 1981 as stated above Five suspects have been arrested.
(2.) THE seven petitioners, not yet arrested, have filed an application under Section 438 read with section 482 of the Code of Criminal Procedure in this Court, contending therein that no case is made out against them and the persons, who are said to have named them in their police statements, neither knew them beforehand nor can identify them if a test identification parade is held. That, the investigation in the case is motivated by political influence and fabrication is writ large on the police record and therefore, the petitioners should be enlarged on anticipatory bail. It has been further contended that the five accused, since arrested, had immediately after their arrest prayed the Chief Judicial Magistrate that they were not known to the witnesses and their identification parade should be conducted immediately. The prosecution contested that application and he Magistrate rejected the same. Thereafter third degree methods were adopted by the police and they were shown to the witnesses prior to the identification parade. The petitioners apprehend the same fate. The petitioners therefore, have prayed for anticipatory bail and in the alternative submitted that they are prepare to surrender themselves before the Superintendent, Central Jail or before any Magistrate and direction may be issued for holding the identification parade immediately before the petitioners are put in custody. Request has also been made for direction for getting the test identification parade held even for the witnesses who have named the petitioners in their police statements. On October 22, 1981, the Public Prosecutor was directed to give in writing as to whether the Investigating Officer is willing to request the Magistrate to hold the identification parade of the accused petitioners even by the witnesses who are said to have named them in their statements under section 161 of the Code of Criminal Procedure. On October 26, 1981, the Circle Officer, incharge of the investigation, in compliance to that order, submitted that naming the accused by the witnesses in their police statements, clearly indicates that they were knowing them beforehand That, the petitioners are absconding for a long time from their residence and despite efforts could not be arrested and therefore, proceedings under secs. 82 and 83 of the Code of Criminal Procedure have been initiated against them. That, some of the witnesses have not named the petitioners, rather have claimed to identify them on seeing them and therefore, identification parade for them was to be held. That, the weapons of offence are to be recovered from the petitioners. Stating about the gravity of the offence and the circumstances of the case, the Investigating Officer submitted that there is no propriety in getting the identification parade held at this stage for the witnesses who had named the accused. On October 30, 1981 an application under section 482 of the Code of Criminal Procedure has been filed on behalf of the petitioners stating therein that in view of the positive assertion by the petitioners that the prosecution witnesses do not know them by name, nor can they identify them, this Court may direct for holding the identification parade immediately by the Magistrate without assistance of police and the petitioners are prepared to surrender or be arrested before any Magistrate ordered by this Court to secure ends of justice.
(3.) AT the commencement of the arguments, Mr. K. N. Joshi, learned counsel for the petitioners No 1, 2,4, 5 and 7 submitted that as the identification parade is yet to be conducted, be does not press the application for anticipatory bail at this stage and shall confine his arguments to the petition under section 482 of the Code of Criminal Procedure. Mr. S. N. Deedwania and Mr. P. L. Choudhary, learned counsel for the petitioners No 3 and 6 respectively, however, submitted that in view of the stern attitude of the Investigating Officer not to get the identification parade held for the witnesses who have named the petitioners, they do press the prayer for the petitioner being enlarged on anticipatory bail. I would therefore, first deal with the application under section 438 of the Code of Criminal Procedure. ;