SHRIMAL, J. - (1.) HEARD learned counsel for the petitioners and learned Public Prosecutor on behalf of the State.
(2.) A case under secs. 302, 323, 324 and 147, I. P. C. is under investigation at the Police Station, Pilani, against Indraj, Surja Ram, Mahadaram, Heeralal, Malaram, Mangla Ram, Bajrang, Mahipal, Jai Singh and Dana in connection with committing the murder of Ramavtar and causing injuries to Chiranjilal, Vishambhar, Rameshwar, and Mahipal. Out of the ten accused, five persons have been arrested by the police, namely, Mahadaram, Malaram, Heeralal, Mangla Ram and Bajrang and they are in judicial lock-up under a remand order given by the concerned Magistrate under sec. 167, Cr. P. C. , 1973. A perusal of the postmortem report shows that the deceased sustained four injuries and in the opinion of the Medical Officer the head injury resulting in coma and shock, was sufficient in the ordinary course of nature to cause the death of the victim. Besides the deceased, four other persons have had also sustained some injuries which prima facie show that the participants in the crime are likely to be a number of persons. An accused can be arrested under sec. 41 (1) (a), Cr. P. C, 1973, on the basis of a reasonable suspicion. It cannot be said that the two petitioners are being involved falsely in this murder case for political reason. None of the petitioners is either a Secretary or a President of a political party or a member of the Legislative Assembly or Parliament. It was argued before learned Sessions Judge and this Court that cross cases have been registered and the accused-petitioners had sustained injuries and they are entitled to the right of private defence of their persons This argument in no way helps the petitioners. The presence of injuries, if any, on the person of the accused does not help their cause. Rather they indicate that they participated in the incident leading to the murder of Ramavtar. Thus, no question of fasting a false case against them arises at this stage. For the time being the Court is concerned with the existence of the material against the accused-petitioners and not as to whether or not credible material for conviction exists. The plea of the right of private defence may be a point in question between contending parties at the stage of the trial. In considering the question of bail justice to both the sides governs the judicious exercise of the courts powers. In State vs. Captain Jagjit Singh (l), the Supreme Court found a basic error in the order of the High Court in treating that the case had fallen under sec. 5 of the Official Secret Act, 1923. It was observed that the High Court ought to have proceeded on the assumption that the case had fallen under sec. 3 of the Act. This case has been followed in Rajkumar Sharma vs. State (Delhi Administration) (2) and Gurcharan Singh vs. State (3 ). On the parity of reasoning I would proceed with the assumption that accused are wanted in a case punishable under sec. 302, I. P. C. The law regarding bail to persons apprehending arrest under sec. 302, I. P. C, stands well settled by a decision of the Supreme Court in Bal Chand Jain vs. State of Madhya Pradesh (4), wherein their Lordships of the Supreme Court observed as under : - "the Legislature never intended that while in such serious offences like murder or those punishable with death or imprisonment for life the accused should have the facility of an order of anticipatory Bail. . . . . . " In the same case their Lordships have further observed that : - "sec. 438, Cr. P. C, immediately follows sec. 437, Cr. P. C. which is the main provision for grant of bail in respect of non-bailable offences, it is manifest that the conditions imposed by sec. 437 (1) Cr. P. C. , are implicitly contained in sec. 438 of the Code. Otherwise the result would be that a person who is accused of murder can get away under sec. 438. Cr. P. C, by obtaining an order of anticipatory bail without the necessity of proving that there were reasonable grounds for believing that he was not guilty of offence punishable with death or imprisonment for life. Such a course would render the provisions of sec. 437 nugatory and would give a free licence to the accused persons charged with non-bailable offences to get easy bail by approaching the court under sec. 438, Cr. P. C. and by passing sec. 437 of the Code. " This, we feel, could never have been the intention of the Legislature. "
(3.) IN Gurcharan Singh vs. State (Delhi Administration) (3), the same matter emerged for consideration before their Lordships of the Supreme Court. Their Lordships while considering the scope of sec. 437, Cr. P. C, 1973 observed as under : - "by an amendment in 1955 in sec. 497, Cr. P. C. of the Old Code the words "or suspected of the commission of" were for the first time introduced. These words were continued in the new Code in sec. 437 (1) Cr. P. C It is difficult to conceive how if a police officer arrests a person on a reasonable suspicion of commission of an offence punishable with death or imprisonment for life (sec. 41 Cr. P. C. of the new Code) and forwards him to a Magistrate (Sec. 167 (1) Cr. P. C. , of the new Code) the Magistrate at that stage will have reasons to bold that there are no reasonable grounds for believing that he has not been guilty of such an offence. At that stage unless the Magistrate is able to act under the proviso to sec. 437 (1), Cr. P. C. bail appears to be out of the question. " A close reading of the above noted cases reveals that at the stage of considering an application under sec. 438, Cr. P. C, 1973, the court is concerned with the existence of the materials against the accused and not as to whether such materials are credible or not for the purpose of conviction. Mere allegation of malafides by an offender and a vehement claim of innocence put forward by him are manifestly insufficient for arriving at a definite conclusion in respect of the commission of an offence. To put the prosecutor to proof at the very inception of the investigation will mean running counter to the whole scheme of investigation into cognizable cases as laid down in Chapter XII of the Code of Criminal Procedure. This is not the stage for invoking the known maxim of the Criminal Law that the burden of proof rests upon the prosecution. That stage arrives at the end of the investigation and in the course of the trial. The inception of the investigation is not a trial. ;