- (1.) BY this petition, under S. 439 (2), Cr. P. C, the complainant-petitioner seeks cancellation of anticipatory bail granted to accused-non-petitioners by Additional District & Sessions Judge, Bayana, vide his order dated August 25,1993. In order to appreciate the circumstances leading to this application for cancellation of bail before this Court, certain necessary facts require narration. Crime No. 289/93 was registered at Police Station, Bayana on a report lodged by the petitioner on July 20,1993. It related to an incident,which had taken place on July 18,1993. It was alleged in the report that the complainant and some other persons were working in their field, popularly known as 'lambe-wala', then the accused-persons came there armed with weapons and assaulted the complainant and four other persons, including one Mahesh, who had sustained an incised wound of the size 10 cm. x 2 cm. on the left fronto parietal region. As per the report, the non-petitioner Shyam was having a sword and it was he who had inflicted the above injury on the head of Mahesh. It appears that the condition of Mahesh was critical on account of the head injury, as such, he was shifted to Bharatpur for his treatment. However, he succumbed to his injuries on August 1,1993, as such, an offence under S. 302, IPC, was also added against the accused-persons.
(2.) THE non-petitioner and one Ram Kishan, apprehending their arrest,moved an application in the Court of Additional Sessions Judge, Bayana for grant of anticipatory bail under S. 438, Cr. P. C. THE application was moved on July 28, 1993 and was listed in Court on July 29,1993. It could not be heard as the Public Prosecutor had not received the case diary. Hence, the matter was adjourned to August 3,1993. On August 3,1993, the Presiding Officer was on leave. It was then posted on August 4,1993. On this date also, the Presiding Officer was on leave and the next was fixed as August 18,1993. On August 18,1993 again the Presiding Officer was on leave and next date was fixed as 24th August for arguments on the application. On 24th August,1993, the case diary was again not received and the matter was ordered to be listed on 25th August,1993 for arguments. On 25th August,1993, the learned Additional Sessions Judge, Bayana granted anticipatory bail to all the accused persons on the ground that the case diary was not produced deliberately. In his order, the learned Judge also observed that on 24th August,1993, the Public Prosecutor had intimated the court that the case diary was in the court of Additional Chief Judicial Magistrate, Bayana, but, still it was not procured from there, while the said court of Additional Chief Judicial Magistrate was hardly at a distance of 1/2 Km. from his court. The petitioner, therefore, moved an application for cancellation of bail under S. 439 (2), Cr. P. C. in the court of Additional Sessions Judge, Bayana. The learned Judge, vide his order dated 8. 10. 1993, allowed the application in part and the order granting anticipatory bail to the co-accused Ram Kishan was cancelled on the ground of misrepresentation of facts by his counsel. However, the order granting anticipatory bail to the accused-non-petitioners was maintained. The petitioner has therefore, approached this Court for the cancellation of anticipatory bail granted to the accused-non-petitioners. It was vehemently contended by the learned counsel for the petitioner that the order of anticipatory bail was obtained by the accused-non-petitioners by concealing material facts from the court that the injured Mahesh had died on account of the head injury and that the offence of S. 302,ipc, was added on 2nd August,1993, even though this fact was in the knowledge of the counsel of the accused, as it was borne out from the order dated August 6,1993 passed by the Additional Chief Judicial Magistrate, Bayana, rejecting the bail application of the co-accused Smt. Kastoori and Smt. Kesar under S. 437, Cr. P. C. Learned counsel contended that this ground warranted cancellation of anticipatory bail of all the accused and, in any case, of the accused Shyam as he was the author of the fatal injury to the deceased which was caused by him from a formidable weapon like a sword. It was also contended that the learned Additional Sessions Judge should not have decided the bail application in the absence of the case diary and the Public Prosecutor ought to have been directed to produce the same from the court of Additional Cheif Judicial Magistrate. Learned Public Prosecutor, appearing for the State, supported the petitioner and contended that the anticipatory bail granted to the accused Shyam should be cancelled. On the other hand, learned counsel, appearing for the accused- non-petitioners, urged that Additional Sessions Judge was right in granting anticipatory bail to the accused persons if the case diary was being deliberately withheld by the prosecuting agency. Counsel contended that in bail matters, as liberty of citizens is involved, it is the duty of Public Prosecutors to obtain the case diary without any delay and the investigating agency is equally responsible towards the court for sending the case diary in time. Learned counsel further contended that the case diary was not sent to the court by the concerned officer deliberately and purposely and, as such, the learned Additional Sessions Judge rightly exercised his discretion in granting anticipatory bail to all the accused-non-petitioners. It was, then, submitted that it was not the duty of the counsel of the accused to inform the court that the offence under S. 302,ipc, was added later on. Lastly, it was contended that a number of persons from the side of accused party had sustained injuries in the same incident and the members of the complainant party were aggressor in the case and no interference was called for by this court.
(3.) I have given my careful consideration to the respective submissions made by the learned counsel of the parties. I have also minutely gone through the case diary, which was made available to me by the Public Prosecutor. The injury report of Mahesh s/o. Bissu, aged about 18 years, shows that he had sustained 5 injuries, which included an incised wound of size 10 cm. x 2 cm. on his left fronto parietal region. He died on 1. 8. 1993 as a result of the injuries and the offence under S. 302, PIPC, was added on 2. 8. 1993. Shri Ram Babu Pancholi, advocate, who had appeared for the accused-non-petitioners in the court of Additional Sessions Judge, Bayana, had also moved a bail application for the accused Smt. Kastoori and Smt. Kesar under S. 437, Cr. P. C, in the court of Additional Chief Judicial Magistrate, Bayana. This application was rejected by the said court on August 6,1993. A certified copy of the order has been placed here by the petitioner. The said order indicated that Shri Ram Babu Pancholi was having the knowledge of the fact that S. 302, IPC,was added during investigation on the death of Mahesh Chand. The application filed by the non-petitioners for granting anticipatory bail was decided by the learned Additional Sessions Judge, Bayana on 25. 8. 1993, i. e. ,much after above order. When the bail application of the accused-non-petitioners was decided, the case diary was not before the Judge, as such, neither he nor the Public Prosecutor could know that the accused-persons were required to be arrested in a case under S. 302, IPC, and this fact was also not disclosed by the counsel appearing for the accused. Learned Additional Sessions Judge has also mentioned in his order dated 8th October,1993 that it was not brought to his notice that S. 302,ipc,was added on 2. 8. 1993 during investigation of the case. The question, therefore, arises for consideration whether it was the duty of the counsel, appearing for the accused, to have disclosed the above facts when the application for anticipatory bail was heard on 25. 08. 1993 in the absence of the case diary?. It cannot be disputed that the nature of the offence is an important and relevant factor for deciding an application for grant of anticipatory bail. An accused cannot claim bail as of right in a non-bailable offence, less to say an anticipatory bail. Grant of anticipatory bail in a murder case is rare and exceptional. Addition of the offence u/s. 302,ipc, on the death of injured Mahesh Chand, was an important fact having a direct bearing on the decision of the application. I am of the confirmed view that in the duty of the facts and circumstances of the case, it was the duty of the counsel of the accused-non-petitioner to have disclosed this fact to the learned Judge when the bail application was heard and decided in the absence of the case diary. The learned Judge was dealing the application under the assumption that the offence was under S. 307, IPC and not under S. 302, IPC. It is no doubt true that the counsel appearing for the accused was keen to get anticipatory bail for his clients and it cannot be disputed that as a lawyer, he was required to safeguard the interest of his clients, but, it was equally important for him to make the disclosure of facts of the case correctly and honestly to the concerned court. One should not forget that a lawyer is also an officer of the court and he owes a duty towards the court that the facts of the case are not deliberately misrepresented and material facts are not suppressed from the court to obtain a favourable order for his client. The legal profession has a nobility in itself and a lawyer is a privileged member of the community. He performs delicate and responsible duties for his client, as well as, for the court also. On the one hand, he holds a brief of his client with a primary duty to safeguard his interest and on the other hand, as an officer of the court he is expected to fairly discharge his duties. As a court's officer, it is his duty to disclose the facts without making any misrepresentation or a deliberate concealment. I do not agree with the contention of the learned counsel for the accused that it was not the duty of the counsel of the accused to disclose all important and relevant facts having bearing on the case. In the instant case, the counsel, appearing for the accused, had the knowledge that offence under S. 302, IPC, was. already added during investigation on the death of the injured Mahesh Chand but this fact was deliberately suppressed by him to obtain the order of bail. Any such order obtained by misrepresentation or suppression of material and relevant facts can be safely termed as bad in law and is void. ;