Dr. Dattatraya Samant v. The State Of Maharashtra

Kotwal, J.:— A small meeting convened on 3rd August 1980 when the sun was blazing end the workers of the Crompton Greaves Factory were on way to report to the duty, a speech was delivered by one Dr. Samant who is claimed to be a labour leader, which is claimed and alleged ultimately to have given a pathetic and tragic twist which was perhaps not in contemplation of the persons who had assembled there, though it carries with it a good deal of controversy.

2. The workers of the said factory are governed by a union which is known as ‘Cromption Greaves Employees Union’ (briefly referred to hereinafter as the “rival union”). It is alleged that the union led by the petitioner wanted to have reins of the said factory and that it was the cherished desire of several workers of this union that not only their union should get recognition, but, the members of the rival union should desert ties with the said rival union and should extend allegiance to their union. The said meeting was convened, as is disclosed or reflected through the record, wherein some grievances were ventilated by the leader which included that some of the workers have been retained as temporary workers even though they had put in quite a sizeable number of years of service in the factory. The other grievance, as usual, related to tits wages and the conditions of service. It was echoed time and again in the said speech that it is high time that the management should take note of such grievances and try to rectify and give redress in the aggrieved workers. This meeting was over by 4.30 or 5.00 p.m when everyone appears to have dispersed including the speaker Dr. Samant.

3. There was a disquieting lull for about 4 to 5 hours when no body had even speculated the impending tragedy that was to occur. It is alleged that some of the persons went to the house of one Udaykumar Samant whose only fault at that time appeared to be that he happened to be the brother of one Prabhakar Samant who was the office-bearer of the said rival union. It is alleged that the miscreants stealthily entered the house and attacked the said Udaykumar who was in a vulnerable position and unarmed and he was stabbed practically to death. It is then alleged that while this scene was being enacted at the house of said Udaykumar Samant within the limits of Bandra Police Station, another incident was witnessed at the Kenjur Marg Railway Station where it is alleged that another batch of miscreants wielded knives end other weapons and assaulted some persons as a result of which three persons sustained injuries out of whom one Nokte succumbed to the said injuries in the sion Hospital.

4. Both those incidents were detected the first by the relations and especially by the wife of Prabhakar while the other by the persons who ware nearby. The master was immediately reported to the Police on the basis of which, F.I.R was lodged or formally recorded and the crime was registered. As regards the Bandra incident is concarned, the crime was registered at Kherwadi Police Station while the other crime was registered at Kurla Police Station. After registration of oftenegs, the usual investigation commenced. Various panchanamas were drawn including the inquest be the two dead bodies and both the dead bodies were sent for autopsy. It appears that the Police Could not collect sufficient material on the same day but the investigation continued to be in prograss and that is how, the accused came to be arrested in batches. For the purpose of the record, it can be stated that the original accused Nos. 8 and 10 were arrested on 4th August 1980, while accused No. 3 was arrested on 7th August, accused No. 7 on the 9th August and the last batch consisting of accused Nos. 1, 2 and 4 to 6 on 10th August 1980 which perhaps completed the arraigning often accused persons involving their complicity in the said offences.

5. From time to time, police custody remand was obtained by the Investigation Officer as the accused were produced before the concerned Magistrate. In so far as the petitioner-original accused No. 1 Dr. Samant is concerned, he was arrested on 10th August 1980 and was produced before the learned Addl. Chief Metropolitan Magistrate, 37th Court, Esplanace, Bombay when police custody remand was prayed for on 11th August. The learned Magistrate remanded the petitioner to police custody upto 20th August by his order passed on the next day that is on 12th August. The postponement of passing the remand order appeared to be inevitable in view of the hot contest which was experienced by the learned Magistrate vis-a-vis the application for bail, tendered on behalf of the petitioner. That application for bail cams to be rejected by the learned Magistrate. The tenor of the said order unerriggly indicates that the learned Magistrate was concerned predominantly with the limitations on his powers as according to him no was not entitled to weigh or assess the evidence and he further opined that some reasonable time is necessary for the Police to investigate into the matter.

6. The petitioner thereafter moved the learned Sessions Judge for Greater Bombay by application No. 203/80 making out the same prayer for grant of bail though meeting with the same fate of denial of bail by the order passed by the learned Addl. Sessions Judge on 16-8-80. The trend of the learned Sessions Judge's order indicates in no uncertain terms that he had concentrated his attention predominantly on one aspect, namely, whether the facts justify the submission of the prosecution that some more time for investigation is necessary and it is on that count that the continued detention of the petitioner was inevitable. In other words, though there is only a passing reference in the said order, the learned Sessions Judge does not appear to have applied his mind to all the facets which clothed him with the requisite authority under section 439 Cr. P.C and this, in my opinion, wilt have its own bearing. It is this order that is being impugned by the petitioner and along with it, the petitioner also seeks to invoke jurisdiction of this Court under section 439 Cr. P.C independent and de hois of the order passed by the learned Sessions Judge. This is the subject matter of Cr. Application No. 1051 of 1980.

7. In between, there has been a development to which a cursory reference is necessary. On 21st August, the petitioner (original accused No. 1) as well as the original accused Nos. 3 to 10 had moved the learned Committing Magistrate with the same prayer for getting the accused enlarged on bail. In so far as the petitioner (original accused No. 1) is concerned, the same was rejected more or less on the same ground about the incompetency of the learned Magistrate in the matter of granting bail and to assume jurisdiction under the Code. In so far as accused Nos. 8 to 10 are concerned, there has been no finality, inasmuch as, that issue has been postponed to 28th August. The not result is that the petitioner (original accused No. 1) and accused Nos. 8 to 10 ware remanded to police custody upto 23th August. I may incidentally observe that the police desired to have extension of police custody remand upto 4th September which prayer was rejected by the learned Magistrate which also has its own relevance indicating thereby that the learned Magistrate felt that the time upto 28th August would be prima facie sufficient for the purpose of carrying out the investigation.

8. The original accused Nos. 8 to 10 have filed Criminal Application No. 1062 of 1980 though their application for bail was not formally rejected by the learned Magistrate on 21st August. As both emerge out of the same proceeding and common submissions are annexed, both the petitions are being disposed or by this common judgment.

9. It is alleged by the prosecution that the petitioner (orig. accused No. 1) and the other nine accused parsons hatched a criminal conspiracy to assault about 5-6 members of the rival union so as to create panic amongst them on account of which they wars sought to be pressurised to disassociate themselves with the said union and offer their allegiance to the petitioner's union and in pursuance of the said conspiratorial agreement, the meeting in question was convened and addressed by the first accused and further in pursuance of the said object of the conspiracy, some of the accused persons perpetrated the crimes at to different places.

10. Shri Rajni Patel, the learned counsel for the petitioner (orig. accused No. 1), who is also being joined in his submissions by Shri Patwardhan, the learned counsel for the petitioners in the other petition, has strenuously submitted that even accepting the prosecution evidence so far collected at its maximum, in the first instance, it cannot be held that the material could make out a reasonable ground for a reasonable belief that the petitioners at guilty of an offence punishabla with death or imprisonment for life. He has also submitted that the sheet anchor of the prosecution, namely the speech out of which as far the allegations had unfortunately flown the further tragic events should normally spring up a surprise to the prosecution, inasmuch as, there is not oven a whisper of violence having been indicated, much less, any incitement or instigation as such. He has further submitted that there is a systematic attempt and endeavour on the part of the police machinery to any how haul up his client which would be manifest by the fact that the evidence has been moulded from stage to stage alongwith the passage of time. Alternatively, he has submitted that even assuming the evidence against his clients, as acceptable yet, there are no fetters on the powers of this Court as envisaged by section 439 of the code and, therefore, this is pre-eminently a proper case for exercising discretion in favour of the petitioners in enlarging them on bail rather than refusing bail to them. Shri Patwardhan, the learned counsel submitted that practically there is not even an iota of evidence so fat as accused Nos. 8, 9 and 10 are concerned and the only fault attributed to accused No. 8 is his capacity as the office bearer of the said union which can hardly be styled as criminal activity in the context of the nature of the offences.

11. The learned Advocate General who appears on behalf of the State has with equal force submitted that the material collected so far by the police is adequate enough to hold that there are grounds to believe that all these petitioners would be guilty of offences punishable with death or imprisonment for life, in effect, at the threshold itself, the learned Advocate General submitted that even under section 439 of the Coda this Court has limitations and the impression that was sought to be conveyed was that if an offence is prima facie made out against the petitioners which is punishable with death or imprisonment for life, then, even this Court has no jurisdiction to entertain an application for bail. He further submitted that there is imminent danger of tampering with the evidence by the petitioners and in particular by accused No. 1 who is claimed to be a labour leader. The learned Advocate General has placed before me the data collected by the police so far in the shape of the statements of the relevant witnesses on which reliance has been placed on behalf of the State. The learned Advocate General also propagated a point that not only the defence are not entitled to have a look at those statements but even to hear the gist of the said statements and when a specific query was made to the learned counsel for the Stats as to what would be the position if the Court is desirous of asking certain questions vis-a-vis the contents of those statements and as to whether that dialogue can be ensued in the presence of the teamed counsels for the defence, though at the initial stage there was some hesitancy on the part of the counsel, yet, ultimately, it was submitted that even that course is not permissible for the Court. The learned counsel, therefore, ultimately submitted that this Court cannot even discuss any point which is touching and is germane to the contents of those statements.

12. Some of the features cannot assume any controversy in this proceeding and some aspects will have to be presumed as they stand on the record. Thus, for instance, the credibility of the witnesses and the truthfulness of their version which normally requires a detailed probe for appreciation of evidence may not be go liberally permissible in this proceeding. While approaching such proceedings, one will have to bear in mind the well-settled principles governing the granting or reaction of bail in a matter which prima facie is of a sorious and heinous character. At the same time, one cannot be oblivious of the fact that an accused person is entitled under the criminal jurisprudence to knock at the doors of the Court of law to seek redress when the liberty is in jeopardy. I am also tempted to observe that the magnitude end the dimensions of the nature of offence and the tragedy should normally not obscure the vision of a Judge while dealing with a matter, may be, at an interim stage. Bearing in mind all these principles, I propose to deal with the rival contentions propagated by both the sides. There is no controversy apart from the concussion made by the State that admittedly petitioner (orig. accused No. 1) was not physically present on both the occasions at the said two places when the two different crimes were prepetrated resulting in the death of Udaykumar at Bandra in his residential house, while causing injuries to three persons resulting into the death of one Nakte at the Kanjur Marg Railway Station. In so far as the petitioner (orig. accused No. 1) is concerned, he is sought to be made liable by virtue of a conspiratorial agreement entered into by him with the co-accused. The prosecution, for the purpose of involvement of the said petitioner mainly relies on three items of evidence: (1) the so-called theory of inciting speech made by the petitioner at the gate meeting that was convened outside the Crompton Greaves Factory (shortly stated as the factory), (2) some witnesses had over-heard while there has been a drunken browl, some of the co-accused whispering or uttering out of which the complicity of the petitioner in the conpirational agreement is sought to be Spelt out and the third item which I will presently point out has been collected at late Stage, pertains directly to the petitioner when it is alleged that immediately after the meeting was over and while the petitioner was still at the spot, conversation between the petitioner 2nd other workers of his union was over-heard by some parsons who were casually lingering behind out of which conspiratonial agreement is sought to be spelt out. In so far as this third item is Concerned, this was not presented before the courts below for an obvious reason that this pertains to the statements of two or three witnesses who were interrogated by the police for the first time on 17th and 18th August when by that time even the Sessions Court's order had already been recorded. It is true that in this limited scope, even this Court is not called upon to embark on a full-dress enquiry probing into the details about the material collected by the police and its veracity. However, atleast for the purpose of satisfying itself so as to attract thy provisions of section 439 of the Code, this Court has no limitations to go through the said material and in fact, the learned Advocate General has asked this Court to go through all those relevant statements. Before dealing with the factual aspect, the objection raised by the learned Advocate General at the threshold can be disposed of. It was sought to be submitted that even under section 439 of the code if there are reasonable grounds to believe that in Offence punishable with death or imprisonment for life has been prima facie made out, then even the Sessions Court and for that matter even this Court is functus office meaning thereby that this Court has no jurisdiction even to entertain, much less, to enlarge the accused on bail. I am afraid, such a course would Obviously amount to incorrect reading of the relevant provisions of the Code. The provisions relating to bail are incorporated in Chapter XXXIII of the Coda of commencement being from section 436 which lostricts to offence other than non-bailable offences with which of course we are not concerned in this the more relevant provisions are contained in section 437 of the code which are reproduced hereunder for the purpose of proper appreciation:—

“Sec. 437(1) When any person accused of or suspected of the commission of any non-bailable offence to arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on to bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life:

Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or intirm person accused of such an offence be released on bail:

Provided further that the mera fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he otherwise entitled to be released on bail and ??? an undertaking that he shall comply with such directions as may be given by the Court.”

13. Than, we may conveniently skip over to the provisions contained in section 438 Cr. P.C which obviously pertain to anticipatory bail and we can certainly concentrate on the only provisions contained in section 439 of the Code which are reproduced hereunder for the purpose of making the contrast between the said two provisions on the various fronts:—

“Sec. 439—(1) A High Court or Court of Session may direct — (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be sat aside or modified:

“Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused ct an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing of opinion that it is not practicable to give such nonce.”

14. Now, it is too manifest on oven a cursory reading of these two provisions to justify that the submission made by the learned Advocate General is absolutely devoid of any merits and also untenabe in law. Thus, Section 437 by itself not only by implication but expressly excludes the Sessions Court and the High Court and contemplates a situation when an accused person suspected of a non-bailable offence is brought or appears before a Magistrate. This is inevitable and inescapable from the express exclusion of these two forums when it is directly mentioned that when such a person is brought before a Court ‘other than the High Court or Court of Session’. This is perhaps the strongest indication to dispel the doubt that was sought to be created by the learned Advocate General. — This is further reinforced by even a cursory perusal of the other provisions contained in section 439 of the Code, where, it is categorically mentioned that a High Court or Court of Session can issue certain directions for the purpose of release of accused persons on bail. It is also very significant to note that the legislature in its own wisdom decided and advisably so not to incorporate in section 439 or its proviso limitations that have been incorporated in section 437. To put it in other form, the legislature intended not to bestow power on a Magistrate to enlarge on accused person on bail if he is satisfied that there are reasonable grounds to believe that the accused is guilty of an offence punishable with death of imprisonment for life, whereas, this limitation not only impliedly but expressly hes been omitted or excluded from the operation of section 439. There is another indication which further reinforces this conclusion to the effect that what is contemplated in sub-section (a) of section 439(1) is that there is no fatter on the power of the High Court or the Court of Session not only in entertaining an application for bail but also in enlarging the accused person on bail whatever may be the nature of the offence which of course will be subject to the other provisions as regards the granting of bail and it is in this context that the legislature has deliberately employed the terminology as “any person accused of an offence.” In my opinion, therefore, the objection taken at the threshold by the learned Advocate General is obviously untenable. It is one thing to say that the Court should not exercise discretion in favour of granting bail, but, it is poles apart to say that the Court has no jurisdiction to entertain such an application for bail, it is manifest that the Court of Session and this Court have ample jurisdiction to entertain an application for bail even if the offence is punishable with death or imprisonment for fife and in a fit case, subject to the other governing factors, there is no imitation on exercising discretion in favour of granting the bail. I may, with advantage, refer to a decision of this Court in Criminal Application No. 800/77 1(Dattu Takya Patil v. State of Maharashtra), 1980 Bom. C.R 56, wherein this point has been considered on the same lines which I have indicated earlier and it has been held in terms that this Court has ample jurisdiction to entertain as well as to enlarge the accused person on bail notwithstanding the tact that the Court may feel that there are reasonable grounds to believe that the accused is guilty of an offence punishable with death or imprisonment for life. With respect I fully concur with the said observation of my brother in the said ruling.

15. Reliance was placed by the learned Advocate General on the ratio in the case of 2(Gurucharansingh v. Delhi Administration), (1978) 1 SCC 118 : A.I.R 1978 S.C 179 in support of his proposition. However, after going carefully through the entire decision, I am unable to persuade myself and reconcile to the view of he learned Advocate General, inasmuch as, in my opinion, no such proposition has been enunciated in the said decision. It is true that there is some reference to the provisions contained in section 437, vis-a-vis the powers of the Magistrate which are considered while dealing with the powers of the Sessions Court under section 439 of the code. The learned Advocate General especially relied on the following observations:

“From the above change of language, it is difficult to reach a conclusion that the Sessions Judge or the High Court need not even bear in mind the guidelines which the Magistrate has necessarily to follow in considering bail of an accused. It is not possible to hold that the Sessions Judge or the High Court, certainly enjoying wide powers, will be oblivious of the considerations of the likelihood of the accused being guilty of an offence punishable with death or imprisonment for life.”

16. I am afraid, these observations are entirely in a different context which are again brought to the fore front if one peruses the observations made in para 24 of the said decision and it is in that paragraph that we find the guidelines which are in details and which, in turn, are indicated in the earlier paragraph. There is no decision given by the Supreme Court that the High Court has absolutely no powers to entertain the application and grant bail, the moment the High Court feels that there is a likelihood of the accused being guilty of an offence punishable with death or imprisonment for life. It is also worth-nothing that the caution levelled by the Supreme Court is to the effect that the High Court should bear in mind those guide-lines which the Magistrate has necessarily to follow while granting bail to an accused person. The obvious distinction is made when it is indicated that the Magistrate is bound to apply his mind 10 these features, whereas, for the other courts it is very much desirable to apply the mind to these aspects. The guide-lines are well-settled, such as, the likelihood of the accused absconding, imminent danger of the accused tampering with the evidence, status of the accused vis-a-vis the victim and last but not the least, seriousness or heinous character of the offence, and the Supreme Court itself has indicated that these guide-lines are common to both the forums. This Court in the decision in Criminal Application No. 800/77 (Dattu Takye Patil v. State of Maharashtra) (supra) has also dealt with this aspect and negatived a similar contention raised on behalf of the State. In 3(Neranji Premji v. Emperor), A.I.R 1928 Bom. 244, the Court referred to the discretionary power of this Court in the matter of granting bail, while in the ratio in 4(State v. Captain Jagjit Singh), A.I.R 1962 S.C 253, it has been expressly mentioned that the High Court has ample powers to grant bail even in such matters though there should be a judicial discreption. Having a survey of all these judicial pronouncements and the plair reading of the relevant provisions and the contrast that is brought on the fore-front as indicated earlier, I am firm in my opinion that there are no fetters as such on the powers of this Court to entertain such an application on merits and in a proper case, to enlarge the accused on bail, notwithstanding the fact that there are reasons to believe that he would be guilty of an offence punishable with death or imprisonment for life, this of course being subject to the guide-lines enunciated by the Supreme Court in the decision referred to earlier.

17. Having crossed this hurdle which was sought to be placed by the State, one will have now to approach the factual aspect to ascertain whether on the material collected by the Police, this can be said to be a fit case for enlarging the accused on bail. As regards the first two items are concerned, even though an objection has been raised on behalf of the State before me that the defence are not entitled even to have a look at the said statements, yet, on account of the developments in the courts below, this so called apprehension ronders itself mere illusory. In other words, in the courts below, the statements of the said two witnesses were actually road over to the learned defence counsels by the learned Maglstrate himself which is apparent from the record and so far as the speech is concerned, a transcript of the sold speech which was recorded on tape by the Police has been made available to the defence at the time of argument?. It is, therefore, now futile to contend after such a lapse of time, when the mischief, if any has already been committed that the defence should not be made aware of those statements and the documents. Controversy, therefore, will survive in so far as the third item vis-a-vis the statements of those two or three witnesses is concerned. In so far as the speech is concerned, there is a finding even at the prima facie stage recorded by the Court below which is completely against the prosecution. Thus, the learned Addl. Sessions Judge has observed in his order as:—

“I have gone through the copy of the speech supplied to me. There is no mention in the speech from which one can infer that the applicant instigated the workers belonging to his Union to attack or commit offences in respect of members of their rival Union.”

18. Having realised the infirmity naturally flowing from the said speech and his observation, the learned Judge however observed further:—

“However, the speech is one of the pieces of material relied upon by the prosecution.”

19. With due respect to the learned Addl. Sessions Judge, one is unable to grasp as to what was sought to be conveyed by the last mentioned observation. Apart from this, there is a clear finding that the speech by itself contained no incitement or instigation which is sought to be spelt out on behalf of the State in order to satisfy myself, I have carefully gone through the entire script of the said speech and I have not even the slightast hesitation in my mind that in so far as the prima facie view is concerned, the learned Sessions Court's observations appeared to be justified. The graveman of the entire speech relates to ventilating certain grievances which the speaker felt to be quite legitimate. Thus, for instance, it is mentioned that the management have kept certain persons as temporarily for years together who do not get even half the wages paid in the Company, it is also indicated that the workers are not being treated properly in their ligitimate demands. It is again reiterated that the temporary workers must be made permanent and that the management are indulging in hurling promise after promise with the least desire to perform the same. The antire tenor of the same which need not be probed in details, is clearly with the sole and avowed object of ventilating his demands. The validity of those demands is not the point germane to this proceeding as this is not a forum where it may be agitated. The only short question is whether even inferentially any incitement or instigation can be spelt out of the said speech and the answer, prima facie, would be in the negative. On the contrary, there are certain indications which run counter to these inferences. To illustrate, it has been mentioned as:—

“I implore you that you should not quarrel or fight but if anyone comes in the way, we shall have to have an agitation at the gate. This is our call. … … … … … … … … We desire to put an end to the ‘haftas’ (instalments) that are received in this business. Even then, this is a democracy, I do not desire that you should resort to ‘dadagirl’ (coercion) to get control of the Union. I appeal to the management that if any workers are to be sent to Nasik, then, this breaks the seniority of the temporary workers, and this is nepotism. …… They have kept persons temporary. They do not give even half the salary that is paid in the Company. …… And that is why, I have to appeal to you, to all of you brothers that you should have one union in this factory. If you desire, have a secret ballot. After that, take a decision. It is not our insistence that you coma over to us or give us contributions. … temporary people will have to be made permanent. If the management or the leaders make you do anything wrong, remove any of our people, terminate services of any people, employ new persons and send old persons and in these matters who acts as a sycophant, then we will certainly have to agitate at this gate. …. You should act truthfully and correctly. And keep a ballot box. Whoever obtains a majority, gets a recognition….’

20. If these statements which are the Integrated parts of the entire speech, are read in proper perspective, those atleast prima facie cannot subscribe to the view propagated by the learned Advocate General that this may be an objectionable speech. The learned Advocate General, however, relied on one statement on the basis of which he submitted that it contains a garm of instigation, and for the purpose of proper appreciation, the said sentence is reproduced hereunder verbatim as:—

“In the union, there is nepotism. If this kind of business of Union breaking is done by you in Crompton, then, this will become like the Siemens dispute.”

21. It was faintly submitted on behalf of the State that a cerian event had occurred at the Siemens factory which had a Similarity vis-a-vis the pattern of the dispute when certain violence had erupted in the said Siemens factory sifter such an instigation. In the first instance, there is no material on record to establish a nexus either directly or even inferentially between the two incidents. Apart from this, a statement has been made at the bar that the petitioner (orig. accused No. 1) was never arrested in connection with any dispute at the said Siemens factory, assuming that there did exist or occur such dispute. Apart from this, even a plain reading of the said statement, without straining oneself, would destroy the inference that is sought to be Spelt out by the learned Advocate General. The dominant part of the said sentence is:— ‘like Siemens dispute.’ Now this sentence has got to be read in the context of the earlier and subsequent statements wherein the tenor Indicates that there would be an agitation if the management does not rectify that mistake. In the first instance, therefore, there is only a reference to the dispute similar to the one raised in the Siemens factory when the demands were not specified and this ipso facto is not tantamount to saying that by littering these words the petitioner not only conveyed but instigated the workers to resort to violence, much less, on the same night. It is also important to note that such statement read in the proper context and perspective also implicitly indicates that an opportunity was being afforded to the management to rectify the mistake and give redress to the workers and if the management failed, than only thereafter, that agitation was sought to be suggested: It would, therefore, mean that if at all any line of action was indicated or suggested that, in the first instance, was not necessarily a line of violence and secondly, it was obviously postponed to some future date giving a chance to the management to rectify the mistake and to observe the conduct of the management, and therefore, in any event, the tragic events that occurred on the same night are difficult to be tagged with the said speech though this is only a prima facie expression of opinion and I making it very clear that the prosecution will have an opportunity to reconcile this position when the accused are to be put in the dock in the trial Court. However, there can be no escape from the conclusion that the transcript of the speech does not contain even a veiled threat or instigation to violence. The teamed Advocate General has fairly conceded that but for this statement all other statements in the said speech cannot be of much assistance to the prosecution. This, therefore, concludes the aspect so far as the speech and incitement therein is concerned.

22. The learned Advocate General then submitted that it cannot be a matter of coincidence that on the same night two murders were prepetrated while two others were assaulted at two different places and further that it cannot also be a matter of coincidence that the victims of both the assaults in some way or the other happened to be concerned with the rival union. It is also submitted that under the circumstances, there could be no other cause for the said assaults. In my opinion, this is again a matter of conjecture and for this to be transformed into a legitimate inference, the proper time would be that this trial is conducted in the Court of Session. At this stage, this cannot be a ground itself to Spell out a conspiracy against the petitioners.

23. Then we are left with the occular evidence of the four or five witnesses corseting of two categories: The first category consists of two Witnesses who claim to have over-heard the co-accused who had assembled in the Shop of one Tivrekar. The said co-accused parsons ware saying on 2-8-80 some time in the afternoon that it was the petitioner who had supplied adequate funds and had instigated them to perpotrate the crimes on the next day. The Said witnesses who are referred to in the Courts below are one Niranjan Desai and one Prabhakar Samant. Even without embarking on a detailed investigation about the truthfulness of this version, some of the features cannot be summarily ignored. Thus, it is for the first time on 10th August that the statements of these witnesses cams to be recorded. That means that it was only after 8 days that these witnesses have come forward to make allegation against the petitioner. It was contended by the learned Advocate General that the witnesses might have been afraid on account of authority and the pressure as the petitioner was yet at large. This submission again is fallacious, inasmuch as; it is on the basis of those two statements only that for the first time the police thought of arresting the petitioner, meaning thereby that these witnesses mustered courage to frankly state before the Police even when the petitioner was still at large. This submission, therefore, will not be of any assistance to the learned Advocate General. It is rightly contended by Shri Rajni Patel, the learned counsel that apart from other infirmitius, this piece of evidence has a very little evidantiary value and there is no escape from this conclusion. If it is treated as an extra-judicial confession as it appears that one of the co-accused has directly admitted before one of those witnesses about his own involvement, then it is obviously ??? that too, an extra-judicial confession by a co-accused which has its own limitation. If it is treated as the dialogue or conversation between the co-conspirators it may become admissible under section 10 of the Evidence Act but for that purpose, the conspiratorial agreement or the existence of conspiracy in that behalf will have to be proved or established. In other words, it only when the conspiracy is prima facie established that any statement made by co-conspirators becomes admissible against other partner in the crime. It is thus clear that a system is sought to be involved starting from the wrong end, meaning thereby that the statements are first to be relied upon on the basis of which a conspiracy is sought to be spelt out. In my opinion, this course is not permissible in law. The third infirmity attached to this obviously would be that even assuming everything in favour of the prosecution, and even treating these statements as admissible by themselves, even this type of evidence is rather a weak type of evidence having its Own limitation, it is not necessary to quote the catena of cases as the principles of law as regards the extra-judicial confession of co-accused and the statement under section 10 of the Evidence Act by a co-conspirator are concerned. Normally, it can hardly be the basis of conviction but it, no doubt; can be used so as to lend additional assurance to the conscience of the Court to reinforce the finding that is already arrived at on the basis of other tangible and admissible evidence. It also appears that one of the witnesses had assisted in concealing weapons of the alleged assault which by itself may dilute his independent character and make the evidence tainted. The submission of Shri Rajni Patel that it has also its own tinge of artificiality cannot be said to be unjustified though I am making it clear that I am not called upon to appreciate these finer shades.

24. We have then the last category of witnesses who have tried to involve the petitioner directly and not by circuitous mode. There are three witnesses in that behalf but as the State is very insistent that the defence are not entitled to even an inkling of their statements, a detailed examination of those statement is not necessary, inasmuch as, on account of the submission made on behalf of the State, the defence are obviously denied of an opportunity to make their submission in that behalf. I do not subscribe to this view for an obvious reason that in that eventuality the defence would not only be handicapped, but even the agitation and canvassing of submission in support of bail application may become illusory. The statements are claimed to be admissible, copies of which are bound to be supplied to the defence subsequently under section 173 Cr. P.C and as such, those are not confidential or privileged documents. No authority or provision for such a has been cited by the learned Advocate General. However, that need not detain me any more, inasmuch as, proceeding further on the assumption or basis as suggested on behalf of the State, hardly changes the fate of this proceeding. However, for the purpose of satisfying myself, I have got to refer to some part of their evidence which is directly relevant. They have tried to implicate the petitioner by indicating that there was some conversation between the petitioner and some of the workers immediately after the meeting was over on the basis of which also the prosecution wants to spell out a conspiracy end involvement therein of the petitions. It is clear from evan a cursory perusal of those statements that these witnesses have come forth for the first time, two of them on the 17th and one on the 18th August and they have casually over-heard the conversation between the petitioner and others after the meeting was over. Even the said conversation taken at its face value does not necessarily indicate that the petitioner had prompted and instigated others to the murder of the said two victims on the said very night. The said conversation also appears to be quite equivocal. This also has its own shade of artificiality and it is important to note that other witnesses who have been examined upto that date and who claim to be present at the meeting, have however, surprisingly not heard this conversation at all though they were close to the petitioner. The witnesses just casually lingered behind after, the meeting was over and accidentally over-heard the said conversation, when they were allowed to remain in the vicinity even though they belonged to the rival union. No other person examined by the Police till than had referred to this conversation. Apart from the shade of artificiality, secrecy, which is normally the key-note of conspiracy, is sought to be thrown over-board. The belated attempt, the artificiality, the infirmities and the inherent weakness attached to this evidence cannot be so lightly brushed aside even in this limited field. In my opinion, therefore, this item cannot be said to have such a great strength as to conclusively spell out the conspiratorial agreement between the petitioner and others.

25. This is the entire evidence which has been placed before this Court it is made vary explicit even at the cost or repetition that I am not embarking on the detailed or a full-dressed enquiry it is not the function of this Court to do so at this stage. I have referred to the pattern of evidence only for the limited purpose, in so far as, it is relevant for the purpose of attracting the provisions contained in section 439 of the Code of Criminal Procedure is concerned. All these items taken and read together in proper perspective, it can not be said that there appear reasonable grounds for believing that the petitioner has been guilty of an offence punishable with death or imprisonment for life or to put it in the alternative and at the minimum, it cannot be said with that degree of certainty, as it is not free from reasonably doubt, that the petitioner would be guilty of such an offence and lastly even otherwise, having regard to the guide-lines, this is a fit case to exercise discretion, in a judicial manner under section 439 of the code in favour of granting bail to the petitioner. I may, however, hasten to add that an opportunity would be available to the prosecution to properly place its case before the Sessions Court at the trial and to make endeavours to reconcile these facets despite the prima facie view indicated against them.

26. This takes me to the last plank of the submission of the learned Advocate General that this case is squarely governed by the guide-lines enunciated by the Supreme Court in the esse cited earlier. It is first submitted that petitioner if released, on bail is likely to tamper with the evidence. Shri Rajni Patel, the learned counsel has brought to my notice that in both the courts below absolutely no submission in that behalf, much less, any tangible apprehension was ventilated on behalf of the State and this submission appears to be justified from the record of the courts below. It is for the first time in this Court that a statement is made in the affidavit on behalf of the State that the concerned Police Officer apprehends that the petitioner may tamper with evidence. It is also important to note that the petitioner was at large from 3rd to 10th August and we do not find oven a whisper in the affidavit that any endeavour or attempt was made by the petitioner, directly or indirectly, to tamper with evidence during the span of said 8 days. No tangible incident has been indicated even in the affidavit and no person has been brought forth to ventilate his grievance that an attempt to tamper with his evidence has been actually made by the petitioner or his followers. No doubt, the question about tampering with evidence is very germane, however, under these peculiar circumstances, in my opinion, one Cannot jump to the conclusion again with the same degree of certainty that the apprehension expressed on behalf of the State for the first time in this proceeding is well-founded. I am also tempted to observe that the picture of the petitioner that hos been painted by the State and as is reflected in the documents and the record conveys an impression that the strength and influence of the petitioner lies not only in himself but also in his hench-men and if that be so, then there would always remain a possibility of such hench-men or the followers trying to tamper with evidence and for this prospective likelihood, the petitioner obviously cannot be punished. The State would be at liberty again to move the Court if there is a proper foundation and tangible material to substantiate the claim that the petitioner is guilty of and has actually attempted to tamper with evidence, or even to justify that there are reasonable apprehensions in that behalf. The offence is a serious on and of heinous character is hardly a matter of controversy. Apart from blood-shed, the manner of prepetration of crime is no doubts brutal. However, as I have already indicated, the petitioner is sought to be implicated not because of his individual participation in the said crimes but only because on account of the conspiratorial agreement. It is submitted that the status of the petitioner vis-a-vis the victims and the witnesses is a relevant factor and the petitioner carries with him a sense and a label of force and authority which may be a ground for the witnesses not come forth at the trial. This again, in my opinion, is very speculative rather than rational and tangible.

27. That the petitioner is likely to abscond is not even indicated on behalf of the Stats and for obvious reasons there can hardly be any such apprehension. The petitioner is a sitting member of the Maharashtra Legislative Assembly and he has his permanent residence in Greater Bombay. He is a medical practitioner.

28. The other motive which is one of the guide lines would be that, the accused petitioner is inclined to flee from justice if there are good chances of entailing into his conviction. Shri Rajnt Patel, the learned counsel has submitted that on this material there is no reason for his client to flee from the justice. Without expressing any opinion on merits of the case, I am not inclined to hold that the petitioner is likely to flee from justice, much less, he is likely to abscond.

29. It may be mentioned here that it is rather surprising to note that it is not even whispered in the affidavit filed on behalf of the State that there would be a problem for law and order if the petitioner is released on bail. This would mean that the State do not apprehend any such disturbances or any such problem. It is also not indicated in the said affidavit that the petitioner would again indulge in holding such meetings which may again give rise to such incidents. Though both these aspects by themselves may not be so germane or relevant for denying bail yet, they cannot be said to be that irrelevant in the context of the allegation that the petitioner is a labour leader end the said two incidents occurred on account of the speech given by the petitioner. It is also not mentioned in the said affidavit that any witness was actually approached, pressurised, threatened, induced or coerced by the petitioner by himself or through his agents or that any such incident has been intimated to the Police so far.

30. As stated at the threshold, the learned Sessions Judge was persuaded to dispose of the application on a short ground, namely, whether the continued detention of the petitioner was necessary for further investigation, meaning thereby that he did not apply his mind to all these other facts. That aspect also is not very much available to the State, inasmuch as, about 25 days have elapsed after the commission of the offences and all the material that could be collected by the Police has been placed before me. The relevant statements range between 10th and 18th August and thereafter, there is no tangible material collected by the Police, in my opinion, attest in so far as the petitioner is concerned, this can be said to be a reasonable time which was allotted to the Police to collect the material. I am therefore, not in agreement with the submission made by the learned Advocate General that a further time be granted for completing the investigation. If the witnesses could not come forth for 25 days, it is very difficult to enter the arena of Speculation that in the near future there is possibility or pious hope of witnesses Coming forth before the Police to give evidence against the petitioner. Significantly, in both the remand applications dated 11th and 21st August almost identical grounds in extremely vague and nebulous form have been incorporated for extension of Police custody remand. The material so far collected from 3rd onwards has been referred to end significantly no additional material could be collected even after 21st upto this day, This aspect thus has its own impact. All facets considered properly, in my opinion, this is a fit case for exercising discretion in favour of the petitioner in giving him the concession of bail pending trial.

31. Shri Rajni Patel, the learned counsel further submitted that having regard to the nature of evidence it would be clear that it was sought to be developed from stage to stage to suit the prosecution merely to involve the petitioner. Thus, earlier the talk between the co-accused indicated only a likelihood of assault, while the witnesses examined thereafter went a step further and indicated not only an assault but actual liquidating of the victims. So also, the conversation after the meeting was over, first indicated that some incident was likely to occur end it is thereafter in the subsequent statements of other witnesses recorded on the 18th August that the time element has also been indicated, that is, the incident was to occur on that night. It is not necessary for me to appreciate these finer aspects in this proceeding which could ultimately be left to the domain of the Sessions Court.

32. However, that would not conclude the chapter and would not be enough to drop down the curtain. The interest of justice will have to be sale-guarded. There are some disquieting features which also cannot be ignored. The petitioner has made a statement in the petition that he is prepared to submit to any reasonable conditions that are likely to be imposed by this Court at the time when concession of bail is being granted, parallel to that is the requirement that the investigation should not be hampered and the interest of the State also should not be jeopardised: Liberty of the citizen and the interest of the State vis-a-vis the investigation must be properly dealt with in even scales, in my opinion, some of the stringent conditions are absolutely necessary in the peculiar circumstances and the prevailing situation which would serve the interest of justice without causing any prejudice to either side. The first condition obviously would be that the petitioner will have to report to the concerned Police Station more frequently for a shorter period and thereafter twice a week upto the filing of the charge-sheet, as detailed in the final order. The petitioner also will have to co-operate with the Police in the matter of investigation and to make himself available as and when it is legitimately necessary. The petitioner obviously will not conduct himself in any manner which would directly or indirectly even tend to tamper with the evidence. Apart from these conditions, in my opinion, some restrictions will have to be imposed vis-a-vis the activities of the petitioner as regards the holding of the meetings. Such restrictions obviously shall be reasonable. Therefore, in my opinion, it would be in the fitness of things to prescribe that the petitioner shall not enter the limits of the Police Stations Bhandup and Kherwadi, which are the sore sports till the charge-sheet is filed, for the obvious reason that the witnesses belong to the said area and the tension would he mounting in the said area. It would also be necessary to put a further restriction that the petitioner shall not hold any gate meeting as such out-side the Crompton Greaves factory. This also would be a reasonable and essential restriction for the obvious reason that it is alleged by the Police and it is reflected in the papers of investigation that at the time of the said meeting on 3rd August 1980, some bona fide and faithful workers were obstructed from entering the factory to report to the duty and it is also apparent that some of such workers will be material witnesses for the prosecution, not necessarily to the actual commission of the crimes in question, but atleast for throwing light on as to what happened or transpired at the meeting and such witnesses be completely outside the influence of any outside agency. In addition to these, in my opinion, a blanket condition will have to be impsed on the petitioner without affecting anyone's, right in the fitness of things, to the effect that he shall not address any meeting in an inciting or instigating manner. In my opinion, all these conditions are quite reasonable and also quite essential to further the cause of justice. The prosecution obviously would be at liberty to move this Court if the bail and liberty is mis-used.

33. Reasonable conditions can legitimately be imposed on general principles also white granting bail. A new provision has been introduced in the amended code in section 437 as well as in section 439 which clearly indicate that such conditions can be imposed and those may be necessary in the opinion of the Court in order to ensure attendance of the said person; to ensure that such person shall not commit a similar offence again; and the third condition is, namely, if it is otherwise in the interest of justice. It is true that these pertain to offences punishable upto 7 years or more and certain other offences which are specifically mentioned in Chapters VI, XVI and XVII of the Indian Penal Code, yet, these can be taken into account while dealing with the provisions of section 439. However, there is no bar as such in applying these even to offences similar to the one at hand. Apart from that, on general principles also, any reasonable conditions can be legitimately annexed to the concession of bail to safeguard the interest of justice.

34. With advantage, I may refer to some of the observations made in 5(Shri Gurubuxsingh Siddia v. State of Punjab), (1980) 2 SCC 565 to reinforce my conclusions and to negative the contentions raised on behalf of the State vis-a-vis the scope of powers of the Sessions Court and this Court under section 439 of the Code of Criminal Procedure and also the considerations as regards granting or rejection of ball. Though, the said case deals with the provisions contained in section 438 of the Code relating to anticipatory bail, yet, some observations are germane to the aspect involved in this case also and to that limited extent, the same can be conveniently referred to. Significantly, there is also a reference to Gurucharan's case (supra) therein. The said observations are as:

“It is not necessary to refer to decisions which deal with the right to ordinary bail, “because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924. It was held by the High Court of Calcutta in 6(Negendra v. King Emperor), A.I.R 1924 Cal. 476 that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial end that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the ‘Meerut Conspiracy cases’ observations are to be found regarding the right to bail which deserve a special mention. In 7(K.N Joglekar v. Emperor), A.I.R 1931 All. 504, it was observed, while dealing with section 498 which corresponds to the present section 439 of the Coda, that it conferred upon the Sessions Court or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding section 497 which corresponds to the present section 437. It was observed by the Court that “there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by section 498 and that the only principle which was established was that the discretion should be exercised judicially or judiciously; In 8(Emperor v. Hulchinson), A.I.R 1931 All. 356, it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the Court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safety classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person “must have his freedom to enable him to establish his innocence.”

“Coming nearer home, it was observed by Krishna Iyer, J. in 9(Gudikanti Narasimhulu v. Public Prosecutor), 1978 S.C.C (Cr.) 115, that:—

………the Issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. …… After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right.”

“In 10(Gurucharansingh v. State Delhi Administration), (1978) 1 SCC 118, it was observed by Goswami, J. who spoke for the Court, that:—

There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling ball.’

“In American Jurisprudence (2d, Volume 8, page 806, para 39), it is stated:—

Where the granting of bail lies within the discretion of the Court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance end submission to the jurisdiction and the judgment of the Court, the primary inquiry is whether a recognizance or bond would effect that end.”

“It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.”

35. As regards the petition No. 1062/80 wherein the original accused Nos. 8, 9 and 10 are concerned, it can be disposed of on a very short premise, inasmuch as, oven after going through the entire record, there is practically not an iota of evidence in so far as accused Nos. 9 and 10 are concerned while whatever evidence has been collected as against accuse No. 5 is extremely scanty. No witness has referred to accused Nos. 9 and 10 in any context either having been involved in the conspiratorial agreement or in the perpetration of crime. As regards abused No. 8, the only evidence pertains to has presence in the said meeting on the 3rd August 1980 as he happens to be an office bearer of the Union led by accused No. 1. Even at that time, it is not even suggested that he indulged in any over act end instigated others or could have been a party in the conspiracy as such. He is not identified by any witness in the identification parade. Similarly, accused Nos. 9 and 10 also are not identified at the parade by any witness. Merely because accused No. 8 happens to be an office bearer, by itself, is not tantamount to establish his complicity in the alleged crime. Under these circumstances, there is no escape from the conclusion that all these three petitioners also deserve to be enlarged on bail as practically, it is a case of no evidence against them atleast upto this day. As the record stands, there is absolutely no material or evidence against any of these petitioners; that there does not appear to be reasonable grounds to believe that they have been guilty of an offence punishable with death or imprisonment for life, and further even assuming otherwise, discretion under section 439 of the code can be legitimately exercised in their favour, particularly in the face of paucity of evidence coupled with the fact that it is not even suggested that all or any of them is likely to abscond or is likely to tamper with the evidence. In fact, this position and the outcome vis-a-vis these three petitioners-accused is not seriously controverted by the State.

36. All said and done, I am putting it on record that whatever has been expressed hereinabove is restricted only for the purpose of this proceeding and should not be treated as an expression of opinion on merits, so that, the discretion of the Sessions Court at the trial should remain unfettered. Even for the purpose of this proceeding, whatever observations have been made vis-a-vis the evidence collected by the Police, those are restricted and relied upon not for the purpose of embarking on a detailed enquiry but only for the purpose of satisfying this Court whether the accused persons can be enlarged on bail. Such narrow and limited reference to the said evidence was inevitable and also necessary in the interest of justice and I have taken care not to refer to or embrace any other item which may not be germane.

37. The orders of the courts below could not afford much assistance as the learned Magistrate felt that he had no jurisdiction to entertain the application and the learned Additional Sessions Judge mainly referred only to one aspect about the necessity to extend time for investigation. This has obviously entailed into recording a detailed order even in this narrow field.

38. Before parting, atleast a passing reference to another aspect has become necessary. The learned Magistrate expressed some doubt about his jurisdiction and amongst other matters, he relied on the ratio of a decision of this Court in (Criminal Application No. 166 of 1979). On perusal of the said decision it becomes manifest that the facts therein were obviously peculiar, where the focused was alleged to have stabbed the victim with a dagger in the stomach and also assaulted him with an iron rod on the skull causing serious extensive-damage both externally and internally to vital organs on account which the victim succumbed, soon thereafter. On the first occasion, the learned Magistrate refused bail indicating that the offence would not be short of one under section 302 of the Penal Code while within a few days thereafter, the accused was produced for further extension of remand. The learned Magistrate while granting bail observed that the offence would fall under section 304 part II of the Penal Code even though the full details of the medical evidence were not available, the investigation was still in progress and hardly a few days earlier, he had observed to the contrary. It is in that context and having regard to the nature of the assault by lathal weapons, extensive serious damage caused to vital organs giving no chance for survivar coupled with the observation by the learned Magistrate on the first occassion, that this Court doubted the validity of the said order. Though this aspect is not germane to this proceeding and also may not arise directly, yet the learned defence counsel has requested and strenuously canvassed to deal with the same atleast incidentally as it is of some general importance and such a situation has arisen also and he has canvassed certain points in support of his submission and referred to relevant provisions. The other side has also made their reply to these contentions. A few words would therefore, not be out of place.

39. Examination of some provisions indicating in no uncertatn terms the sharp change brought about by the new Code of Criminal Procedure would be relevant. Provisions relating to enquiry which were recognized as committal proceedings into cases triable by the Court of Session are incorporated in Chapter XVIII of the old code and section 207-a is more relevant. On observing preliminary formalities the Magistrate had to record evidence of material witnesses who could also be subjected to crass-examination and it is thereafter that he had to decide judicially as to whether the accused could earn a discharge or not. It is on consideration of the evidence and the material if he felt that the same disclosed no grounds for committing the accused for trial, he had to discharge him, and if not, he had to frame a charge and commit the accused to the Court of Session where full dressed trial after framing of the charge is envisaged by the provisions contained in Chapter 23 was held.

40. The new Code makes a sharp distinction and change practically absolishing the committal proceedings in cases instituted on police report and substantially curbing down the lengthy process in other cases. In cases Instituted on police report, copies of relevant documents are to be supplied, whereas, in case instituted otherwise than on police report, evidence has to be recorded copies of which alongwith other documents are to be supplied to the accused. It is thereafter that provisions contained in section 209 of the Code come into-operation under which the accused is to be commuted if it appears to the Magistrate that the offence is exclusively triable by the Court of Session and under sub-section (b), he has to remand the accused to custody and it is made subject to the provisions of the Code relating to bail.

41. The forum is then transferred to the Court of Session under Chapter, of the new Code, the two termini being sections 225 end 237. If on considering the material on record, the Court finds that there is no sufficient ground for proceeding against the accused, then, it has to discharge him under section 227. It is thereafter that under section 228, if the Court declines to discharge the accused, a charge is framed in order to proceed with the case, and if the Court opines that the accused has committed an offence which is not exclusively triable by the Court of Session, it may frame charge for any lesser offence and then transfer the case to the Chief Judicial Magistrate or the Chief Metropolitan Magistrate, as the case may be, for trial. If however, the Court is of the opinion that the accused has committed an offence exclusively triable by that Court, then it has to frame a charge and proceed with the trial to its logical terminus.

42. The combined reading of the recommendations of the Law Commission and the objects and reasons would high-light the premise for such change in this category under the new Code. It was realised that the primary object of protecting innocent persons from harassment of straight away facing the trial. In Sessions Court in contrast to those against whom prima facie case was made out, as also of trying to effectively screening filmsy cases was frustrated rather than achieved due to several factors, one being the meagre fraction of cases which are discharged at the preliminary stage. The consideration of the accused getting a full and clear picture of the case by recording of evidence was also found to be adequately compensated and substituted by supply of copies before hand. A reference to some cases such as contemplated under section 198(b) of the Code for defaming public servants or prosecution under the Prevention of Corruption Act when cognizance is directly taken by the Sessions Judge as such or as the Special Judge, was made. In the final analysts it was concluded that committal proceedings are time consuming without serving any essential purpose and without contributing to the efficiency of the trial, and while they do not advance the cause of justice, they only tend to delay the steps of an early trial, and the, primary object is also not achieved in practice. Abolition of such procedure was, therefore, recommended with an equally important resultant consequence of divesting the power of discharge that initially vested in the committing Court.

43. The scheme of the new Code in this context makes some features quite prominent and sharp. In cases instituted otherwise than on police report evidence is required to be recorded which is obviously necessary as there is no pre-screening by any agency as the copies are supplied to the defence. In other cases, the copies of relevant documents including-the, F.I.R and statements recorded under section 161 and 164 of the Code are to be supplied, Both these types of cases upto that stage travel on different tracks but thereafter both are regulated on the same track culminating in the operation of section 209 of the Code where under the cases is committed to the Court of Session. In that behalf, two aspects stand out on the fore-front, namely, that the Magistrate has to concentrage predominantly on the offence being exclusively triable by the Court of Session and further it is the case that is to be committed and thus the consideration vis-e-vis the involvement of the accused being pushed in the background which may be in contrast with the provisions of the old Code. This is further reinforced by such consideration about the involvement of the accused and adequacy of the material in support of that claim being pulled out of the background on the forum of the Sessions Court after commitment. Further, the only requirement is that it should appear to the Magistrate about the existence of such offence. It is true that implicit therein is the further expectation that it should so appear to the judicial mind on the basis of the material on record. The perusal of the record and application of judicial mind to that limited extent becomes inevitable. In that context and in that limited filed, the judicial mind is not supposed to surrender its judgment to the Police or otherwise, if a wrong label is tagged by the Police it would make the goods saleable. The legislative intent is apparent when the forum of the Magistrate and his satisfaction ts incorporated in the provision itself. However, parallel to it is also the other shade of the legislative intent about the limited filed available to the Magistrate. The user of the terminology “if it appears to the Magistrate” makes both these aspects to co-exist. The blending of these two integral aspects is inescapable which would mean that though there is no wholesale clipping of the jurisdiction of the Magistrate rendering it to a nullity, yet, it is circumscribed by all these limitations and restrictions-There should be application of judicial mind for which purpose perusal of the material on record is implied and in that sense, the approach may not be mechanical, but the judicial satisfaction is elevated only to the limited pedestal where it is made to appear to the authority on the face of the record and not further. The employment of the word “appear” is these inevitable inferences which, in turn, negative a deeper probe or involving the process of appreciation of finer shades. In effect, therefore, on a plain reading of the material on record which impliedly excludes appreciation of finer shades involving a deeper probe as at the full-dressed trial, if it appears to the judicial mind of the Magistrate that there exists an offence triable exclusively by Sessions Court, or on such plain reading such, an offence is prima facie or on the face of the record is disclosed, then, he has no option but to commit the case to the Court of Session. The counter part obviously would be that even on such plain reading, it does not appear to the judicial mind that any such offence exclusively triable by the Court of Session exists or even prime facie and on the face of the record no such offence is disclosed at all, then, in that limited field and contingency, he may decline to commit the case. Annexing of wrong label or application of wrong section on the face of the record would be one of such contingencies. Apart from such gross cases, there may occur a situation in an appropriate case where on the plain reading of the material placed before the Magistrate, the offence may not appear to him to by exclusively triable by the Court of Session, in which event he may not commit the case to the Court of Session.

44. When the forum is changed to the Court of Session, the nature of offence as also the involvement of the accused come into play. If an offence triable exclusively by the Court of Session is disclosed but there is no adequate material to indicate involvement of the accused, then, notwithstanding the committal, the Court has to discharge the accused. If however, there is adequate material for the complicity of the accused in that particular offence and yet, the said offence disclosed is not exclusively triable by the Court of Session, then, under section 228(1)(a), it can on framing of the charge, send back the case to the Court below for trial for such a lesser offence. The discretionary nature of the power is indicated in the provision itself and it also appears that if the offence is equally serious, the Sessions Court may itself retain the case. If, however, both the things co-exist, namely offence being exclusively triable by the Court of Session is disclosed as also involvement or complicity of the accused therein, then, under section 228(1)(b), it has to frame charge and conduct the trial itself. As stated earlier, section 209 speaks of the offence and the Case and not necessarily of the accused, whereas, section 227 deals mainly with the adequacy of the material about the involvement of the accused for the purpose of proceeding against him, while section 228 daals with both, the nature of the offence and the involvement of the accused in short, there is thus a three-tier system where, at the first level, the offence is relevant; at the second, the accused, and at the third, both.

45. There was no corresponding section to one under suction 228(1)(a) in the old Code, where under if an accused was committed to the Court of Session, unless, it was sat aside or the committal proceedings were quashed, the Sessions Court had no powers to send back the case to the Magistrate to try for a lesser offence though the object could be achieved by making a reference for quashing of the committal order and these provisions for making a reference are deleted under the new Code. Therefore, the specific provision under section 228(1)(a) has now been made under which only when the Sessions Court is of the opinion that there is adequate material to proceed against the accused for the offence though the offence made out appears to be of a lesser degree that it may exercise discretion either to try it by itself or send it back to the Court below. This provision should not be confused while interpreting the powers of the Magistrate under section 209 of the Code. On a plain and harmonious reading of section 228(1)(a) and section 209 of the new Code, it does not follow that merely because the Sessions Court is vested with the discretionary powers to set aside a committal under section 228(1)(a) and to send the case back, the Magistrate is obliged to almost mechanically commit a case even if the offence does not appear to him to be triable exclusively by the Court of Session.

46. In this connection, with advantage, reference may be made to the ratio in (Sanjay Gandhi v. Union of India), (1978) 2 SCC 39 : A.I.R 1978 S.C 514, wherein it is observed as:—

“Secondly, it is not open to the committal Court to launch on a process of satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested in him under the old Code but has been eliminated now under the present Code. Therefore, to hold that he can go into the merits even for a prima facie satisfaction is to frustrate the Parliament's purpose in re-moulding section 207-a (old code) into its present non-discrationary shape. Expedition was intended by this change and this will be defeated successfully, if interpretive)y we hold that a dress rehearsal of a trial before the Magistrate is in order. In our view, the narrow inspection hole through which the committing Magistrate has to look at the case, limits him merely to, ascertain whether the case, as disclosed by the Police report, appears to the Magistrate to show an offence triable solely by the Court of Session. Assuming the facts to be correct as stated in the Police report, if the offence is plianly one under section 201 IPC, the Magistrate has simply to commit for trial before the Court of Session. If, by error, a wrong section of the penal code is quoted, he may look into that aspect. Shri Mulla submits, if the Magistrate's jurisdiction were to be severely truncated like this, the prosecution may stick a label mentioning a Sessions offence if we may use that expression for brevity's sake; and the accused will be denied a valuable opportunity to prove his ex-facte innocence. There is no merit in this contention. If made-up facts unsupported by any material are reported by the Police and a sessions offence is made to appear, it is prefootly open to the Sessions Court under section 227 Cr. P.C to discharge the accused. This provision takes care of the alleged grievance of the accused.”

47. It is apparent that the Supreme Court was essentially concerned with the powers of the committal Magistrate to discharge the accused in view of the contention raised by the petitioner therein and it is in that context that these observations were made. Even taking into account the total impact of all the observations and the entire ratio, the same supports my view.

48. This takes us to the other side of the coin vis-a-vis the scope and jurisdiction of the Magistrate in releasing the accused on bail. The provisions are contained in Chapter XXXIII of the Code. As regards the persons accused of bailable offences, when they are prepared to give bail, then, if the other conditions are satisfied, the Magistrate shall grant bail under section 436 of the code. As regards the person accused of or suspected of the commission of any non-bailable offence, the matter of course is transformed into a matter of discretion and under section 437 of the Cods if there is no prohibition otherwise and if the guide-lines for enlarging on bail are satisfied, then, the Magistrate in his discretion may release such person on bail. It thus gives the jurisdiction that contains a discretion which must be utilised judicially. It is stipulated that bail may not be denied only on the ground that the accused is required for getting him identified by the witnesses. Certain conditions can be annexed to the liberty and in certain contingents liberty already granted can be snatched by cancellation of bail. In addition to these provisions, there is a ban even on such discretionary power of the Magistrate when there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life in which case, the Magistrate has no jurisdiction and power to release the accused on bail as it is well-emphasized by the user of the words “but he shall not so release”. Exception to this general ban finds place in the proviso relating to young persons or sick or infirm persons or women. Under section 439 of the code relating to the powers of this Court and the Sessions Court, there are no fetters on the powers, meaning thereby that the ban incorporated on the power of the Magistrate for a particular offence is lifted even in such contingencies under section 439 of the code, subject of course to the other governing guidelines and further subject to the judicial exercise of the said discretion. section 437 of the code embraces a situation either before filing of the charge-sheet or even thereafter and in that sense it is common to both these situations. The terminology for the said ban indicates that there appear reasonable grounds for believing that the accused has been guilty of such an offence which is punishable with death or imprisonment for life. If the three clauses are dissected, it would mean that first of all, there should appear reasonable, grounds; secondly, those should be for believing: and lastly, that belief must be to the effect that the accused is guilty of such an offence. Read together, it can be equated to mean that there are apparent grounds for believing that the accused has been guilty of the said offence. The inclusion of the second and the third clauses about the belief and the guilt of the accused indicates something more than suspicion. All this postulates application of judicial mind in the search of finding if there exist reasonable grounds for such a belief and further the beliefs should be about the guilt of the accused for the said offence, which necessarily implies some probe of judicial mind to the extent necessary for forming such a belief. Section 209 no doubt contemplates the proceedings after the filing of the police report or the complaint. In the said provision itself no ban on granting of bait is echoed or stipulated in sub-section (b) when it is mentioned as:

“Subject to the provisions of this Code relating to bail.”

49. Therefore, in an appropriate case, notwithstanding the committal under section 209, vis-a-vis an offence exclusively triable by the Court of Session, a discretion in the matter of granting ball can be legitimately and lawfully exercised, though in a judicial manner, under section 437 even in respect of such an offence, provided that the requirement of all the clauses of the said provisions are satisfied and fulfilled. Further, more or Jess similar considerations may apply to the principles of granting of bail or otherwise under section 437 of the Coda even before filing of the charge-sheet. Therefore, it can be said that the jurisdiction in that behalf does vest in the Magistrate at both the stages as the provision governs both such situations. Needless to say that this discretion has to be exercised judicially with reference to the facts of each case and at the pre-chargesheet stage these facts may include, amongst other items, the stags and progress of investigation.

50. All said and done, it cannot be overlooked that existence of jurisdiction vested in the Magistrate only lifts the ban, yet, it is governed by the pivot that there should be a Judicial exercise of the discretion in deciding either way in all such matters.

51. In the result, both the petitions are allowed. The petitioner in Criminal Application No. 1051 of 1980, that is, original accused No. 1, namely, Dr. Dattatraya Samant is directed to enlarged on bail in the sum of Rs. 10,000 with personal recognizance and a solvent surety for the like amount. The following conditions, however, shall be annexed to this order of bail as against the said petitioner (original accused No. 1), namely. Dr. Samant:—

(1) That the petitioner shall report to the office of the Detection of Crime Bench, Greater Bombay once every day for a period of two weeks from the date of his release.

(2) That after the said period two weeks is over, the petitioner shall report to the said office on every Monday and Thursday till the filing of the charge-sheet.

(3) In addition thereto, the petitioner shall make himself readily available to the said concerned Police officers for the purpose of investigation of this case as and when so required at all reasonable times.

(4) The petitioner shall not enter the limits of Bhandup and Kherwadi Police Stations except for the purpose of legitimately attending a proceeding in a Court of law till the filing of the charge-sheet.

(5) The petitioner shall not at any time till the disposal of the Sessions Trial, if any, attend, hold or address any gate meeting out-side the Crompton Graaves Factory situate at Kanjur Marg.

(6) The petitioner shall not hold or address any meeting delivering any inciting or instigating speech or even such speech which has a tendency to incite or instigate to indulge in violence or in any objectionable or criminal activities anywhere within the entire jurisdiction of Greater Bombay till the disposal of the Sessions trial.

(7) The petitioner shall not conduct himself in any manner either directly or indirectly either tampering with or even tending to tamper with the prosecution evidence or the prosecution witnesses at any time.

(8) Liberty to the prosecution to move the Court if the bail is misused by the petitioner.

52. As regards the petitioners in Criminal Application No. 1062 of 1980 that is, original accused Nos. 8, 9 and 10 are concerned, they are directed to be enlarged on bail in the sum of Rs. 5000/- each with personal recognisance and solvent surety in the like amount, on the following conditions:—

(1) Each of these three petitioners shall report to the said Detection of Crime Branch, Greater Bombay on every Tuesday and Friday in each week till the filing of the charge-sheet.

(2) They shall not conduct themselves in any manner so as to tamper with the prosecution evidence.

(3) Liberty to the prosecution if the bail is mis-used by any of these three petitioners, to move this Court.

53. Inform the Police Officers of the concerned Police Stations and the officers of the Detection of Crime Blanch, Greater Bombay accordingly.

54. At this juncture, Shri Samant, the learned counsel on behalf of the State has made an oral motion that if the State decides to move the Supreme Court against the order which is sought to be Impugned, the operation of this order enlarging the petitioner (orig. accused No. 1) Dr. Samant on bail be stayed for a reasonable time. I am afraid, in the peculiar facts and circumstances of this case, such a course is not permissible. The order which is the ultimate outcome of this proceeding, results in granting liberty to the petitioner and once an order has been passed on merits of the proceeding, it would not be proper and fair that the operation thereof should be stayed as it would be nothing but tantamount to denying bail to the petitioner even for a shorter period, though on merits, this Court has directed that he is entitled to bail. The State, if so advised, has an alternative remedy of moving the Supreme Court for cancellation of the bail even if the operation of this order is executed and as such, no prejudice would be caused. The oral motion, therefore, stands rejected.

55. Petitions allowed.