G. M. LODHA, J - (1.) THE present bail application U/s. 439, Cr. P. C. , arises out of a murder in an election dispute in a remote small village known as Rol of the Nagaur District of Rajasthan, THE prosecution case is that on the day of the occurrence, procession of the elected Sarpanch was taken in the village. THE deceased did not vote for the Sarpanch. Due to this one Rameshwar, who happened to be the nephew of the deceased, went to the house of the deceased and after reprimanding him for not giving vote to the Sarpanch, stabbed him with a knife. THE other three accused, who are the applicants before this Court for grant of bail, were accompanying the accused at that time and they caught hold of the deceased and also cried that the deceased must be killed.
(2.) NORMALLY, in a case of this nature under Sec. 302 pending trial, the request for bail could not have been considered seriously at all. However, Mr. Chatterjee for the petitioner has pointed out a few extraordinary features of the case, which require consideration: - 1. that all the eye-witnesses of the occurrence including the wife of the deceased not only assigns no part to the three applicants, Sumer Singh and others, but they expressly exculpate these accused, 2. that the first information report was lodged in the police station in the presence of the deceased, but in that first information report, the present three accused have not been in any manner connected with the crime, 3. that the first information report was lodged earlier and dying declaration was recorded later on The dying declaration cannot have any more value then the initial information lodged by the brother of the deceased in the presence of the deceased in police station. Mr. Chatterjee, on the basis of the above features of the case, submits that this is one of those cases where it can be safely said, using the language and words of section 431, Cr. P. C. , that there are no reasonable grounds to believe that the accused is guilty of an offence punishable with life imprisonment or death. Mr. Chatterjee has also relied upon a judgment of this court in Surta vs. State, D. B. Bail Application No. 286 of 1978 decided on May 26, 1978. Mr. K. C. Bhandari on behalf of the State, was already allowed time twice to obtain the police diary and assist the court to find out if at all there was any allegation that the wife of the accused who has given statement under Sec. 161, Cr. P. C. , was under any threat or terror. Inspite of repeated abjourn-ments, the learned Public Prosecutor failed to explain any reason for the statement of the deceased's wife exculpating the three accused. In the dying declaration the deceased says, that he belongs to the Janata Party and the accused belong to the Congress Party whose Sarpanch has been elected and whose procession was being taken out and it was on account of this election feud that the deceased was murdered, as he did not support the Sarpanch I shall not allow myself to be in any way effected or swayed away by the political controversy, as it has got no relevance for this Court except to show the motive of the murder. As I am not dealing with the case of the principal accused who gave the fatal knife injury, it is not necessary to go into the motive, more particularly because I am dealing with bail application and not with the principal case. The court is bound to take a detached view and objective legal view, by rising over and above the political history, the regional background or the communal complexion of a particular case and the persons involved in it. I would leave the election dispute there and I would not refer to it any where in this case. Mr. Chatterjee, relying upon Surta's case has stated that the approach in the bail application has been liberalised and this court should therefore consistently with the view taken in Surta's case, make a liberal approach in this case too. I am afraid, Mr. Chatterjee is mistaken there. Surta's judgment was given on the peculiar facts and features of that case and it no where lays down a general principle that the approach in bail matters in murder cases should be liberalised generally. Before I discuss the principles which govern the bail in pending trials, I would like to summarise the principles which this court has laid down in Gurta's case. They are as follows : - 1. that the recent trend of judgments of Supreme Court more particularly the two cases : Babusingh vs. State of U. P. (1) and Kashmira Singh vs. State of Punjab (2) go to show that the court takes exception to the inordinate delay in disposal of appeals. They wanted to reconsider and review the old practice of not granting bail in criminal appeals where accused was serving life sentence, in such cases of delay, 2. the abnormal delay of 4 to 5 years in disposal of the criminal appeals in High Court is sufficient to warrant the release of the accused on bail even in serious cases of life imprisonment but there also, the bail can be refused if some extraordinary or exceptional reasons are shown against the accused, 3. that the additional factor that preparation of paper book has not commenced in the High Court even after five years of the accused remaining in jail, strengthens the case of appellants for release on bail, 4. the enactment of Sec. 438, Cr. P. C. . and 167 (2) proviso (a), Cr. P. C. , do point put some change in outlook of Legislature in bail matters.
(3.) IT would be thus clear that the above propositions only relate to those criminal appeals which are pending in the High Court for the last about 5 to 6 years, and have not been disposed of on account of delay caused due to no fault of the accused. It would be therefore wrong to construe the judgment of this court in Surta's case to mean a general liberalisation attitude in grant of bail even in the serious cases pending trial where the punishment is death or life imprisonment. It should be made clear that the principles are the same which are contained in section 437 to 439, Cr. P. C. , and there cannot be any departure from it. Now, in cases pending trial, the seriousness and gravity of the offence is always one of the principal consideration in the matter of grant of refusal of the bail. The possibility of the accused tampering with the evidence or/ and absconding are other important considerations in these matters. The delay in disposal of the caste always support the considerations for grant of the bail where the delay is unexplained, abnormal and due to no fault of the accused or bis counsel. The reripus ailment of the accused which normally cannot be attended to in jail is also one or the exceptional feature which weighs in favour of the accused for granting bail even in serious cases. However, so far as pending cases are concerned, the uppermost and the most important consideration is whether on the facts and the record of the case, it can be said that there are reasonable grounds to believe that the accused is guilty of an offence warranting punishment of death or imprisonment of life. ;