LexNIRANJAN SINGH & ANR. versus PRABHAKAR RAJARAM KHAROTE & ORS.
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I 15 NIRANJAN SINGH & ANR. v. PRABHAKAR RAJARAM KHAROTE.& ORS. Mqrch 10, 1980 (V. R. KRISHNA IYER AND A.P. SEN, JJ.] Criminal Procedure Code 1973, Section 439(1) (ai)-Enlargement on bail- PerSOff to be accused of an offence and in custody-Wiren is a person in custndy. B Bait.--Orders on bail application-Detailed examination of evidence, elabo- rate documentation to be avoided. C Suspension-Police Officers-Serious charges framed by a criminal court- Placing such officers under suspension-Necessity of. The petitioner was the complainant in a criminal case where the accused were two sub-inspeetorn and eight police constables (respondents l to 10). The case of the complainant was that in pursuance to a conspiracy his brother was way laid by a police party consisting of these respondent•. It was alleged that he was caught and removed from the truck in which he was travelling, tied with a rope to a tree and one of the sub-inspectors fired two shots from his revolver on the chest of the deceased at close range which killed him instantaneously. Having perpetrated this villainy the policemen vanished from the scene. The respondents' version was that the victim was himself a criminal and was sought to be arrested. An encounter ensued, both sides sustained injuries and the deceased succumbed to a firearm shot. The State not having taken any action, the petitioner was constrained to file the private complaint.. The Magistrate who ordered an inquiry under section 202 Cr.P.C. took oral evidence of the witnesses and found that there was sufficient ground to proceed against all the respondents under sections D E 382, 341, 395 and 404 read with section 34 IPC. Non-bailable warrants were issued for production of the accused and the Magistr:ite who refused the bail I' litayed the issuance of the warrants. The respondents moved the Sessions Court for bail which granted bail subject to certain directions and conditions. Feeling aggrieved, the petitioner moved the High Court but it declined to interfere in revision but imposed additional conditions to ensure that the bail was not abused and the course of justice was not thwarted. In the special leave petition, the petitioner contended that the respondents G could not be released on bail asi they were not in custody and being on bail they were abusing their freedom by threatening the· petitioner. lia.D : I. Cutody, in the context of section 439 Cr.P.C. is physical control or at least physical presence of the accnsed in court coupled with sub- mission to the jurisdiction and orders of the court. He can be in cust<X1y not merely when the police arrests him., produces hin1 before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in juidic;ial cns.tody when he surrenders before the court and submits to its directions. HY F-GJ H 16 SUPREME COURT REP_ORTS [1980) 3 S.C.R. A 2. A responsible Government, responsive to appearances of justice, would have placed police officers against whom serious charges had betn framed by a criminal c0urt, under suspension unless exceptional circumstances suggesting a conaary course exist A gesIDre of justice to courts of jU.sticc is the least that a government owes to the governed. [20 H-21 A] 3. Detailed examination of the evidence and elaborate documentation of the B merits should be avoided while passing orders on bail applications. No party should have the impression that his case has been prejudiced. To be satisfied about a prin1a facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself. [18 CJ 4. Grant of bail is within the jurisdiction of the Sessions Judge but the court must not, in grave cases, gullibly dismiss the possibility of police-accused .t C intimidating the witnesses with cavalier ease. Intimidation by polictmen, when they are themselves accused of offences, is not an unknown phenomenon. [18 D-El E F 'G H CRIMINAL APPELLATE JURISDICTION (Criminal) No. 393 of 1980. Special Leave Petition From the Judgment and Order dated 25-9-1979 of the Bombay High Court in Cr!. Appln. No. 607 of 1979. Petitioner No. 1 in person. P. R. Mridul, S. V. Deshpande and N. M. Ghatate for Respondents l to 11. 0. P. Rana and M. N. Shroff for Respondent No. 13. The Order of the Court was delivered by KRISHNA IYER, J. ''No one shall be subjected to torture or to ' cruel, inhuman or degrading
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