1. This is State's application Under Section 439(2), Criminal Procedure Code praying that bail granted to the non-applicants is not only illegal but also wholly unjustified and hence should be revoked and they be ordered to be sent to judicial custody pending trial.

2. The non-applicants are accused of killing one Sardar Khan at a public bus stand on 6-1-1990 and were wanted by the police authorities at Saleha, Dist. Panna in connection with Crime No. 3/90 Under Sections 302, 120B, 147, 148 and 149, Indian Penal Code. They could not be arrested in spite of serious efforts by the police. Apprehending their arrest, they moved an application along with one Daddu Singh, Under Section 438, Criminal Procedure Code for anticipatory bail. On 16-2-1990, when the said application came up for hearing before the Sessions Judge, Panna, it was withdrawn by these applicants. The learned Sessions Judge granted bail to Daddu Singh. Order in so far as Daddu Singh is concerned is not under challenge. It appears that these applicants again moved the learned Sessions Judge for grant of anticipatory bail to them. On 20-3-1990 when the said application came up for hearing, the non-applicants appeared in the Court and stated that they be treated in judicial custody. Their application was therefore treated as one Under Section 439, Criminal Procedure Code and decided by the impugned order. The learned Sessions Judge held that non-applicant has actually caused death of Sardar Khan by hitting on his head with an axe and hence he was not entitled to bail on merits. The learned Judge however relying on a certificate issued by a Child Specialist Dr. R. Garg issued on 7-3-1990 held that he was suffering from hypertension and mental depression and hence deserved temporary bail. This non-applicant was therefore granted bail till 24-3-1990. Shri S. L. Kochar, learned counsel for this non-applicant stated at the Bar that this non-applicant has surrendered on the due date and is no longer free. Shri Kochar was however not able to state anything else about this non-applicant. The learned Sessions Judge, in so far as N A Swatantra Kumar is concerned held that there was not much material on record to connect him with the fatal blow and held that he was entitled to bail. This order is impugned in this application.

3. After this Court admitted this application for hearing on merits, it directed notices to be served on the non-applicants. N A Gyan Singh has been served and is represented by Shri S. L. Kochar, Advocate. It now appears that N A Swatantra Kumar was also served on 13-9-1990, but did not care to either appear or be represented. The fact of this service of notice on this N A was not on record on 23-1-1991 when this application came up for final hearing. This Court therefore directed that a non-bailable warrant of arrest of this N A shall be issued and sent to S. P., Satna for arresting and producing him in this Court on 31-1-1991. This Court had no information about service of either this non-bailable warrant or earlier notice on 13-2-1991 when this application was again listed for hearing. Even on 13-2-1991 this Court was not informed of service of notice or warrant on this non-applicant. This Court had on 31-1-1991 requested the learned Government Advocate, Shri L. S. Singh to help it in serving warrant or notice on this N A and Shri L. S. Singh promised to personally inform the S. P., Satna about it. On 13-2-1991 even the learned Government Advocate was helpless and only informed this Court that S. P., Satna has been informed not only by a wireless message but also by phone. He was also surprised at the silence of the S. P. about the matter. This Court therefore issued a notice to the S. P., Satna intimating that this Court was inclined to feel that his office, by not serving notice/warrant on the non-applicant, was trying to shield him and was therefore interfering with the work of this Court. He was required to appear in this Court on 25-2-1991 and explain why suitable action be not taken in the matter.

4. Shri Rajiv Mathur, S. P., Satna appeared in this Court on 25-2-1991 and filed his reply to show cause notice. According to him the non-bailable warrant sent to his office by this Court could reach his office on 30-1-1991 and since the non-applicant was to be produced in the Court on 31-1-1991, the same was returned due to lack of sufficient time. Documents filed by him show that the said warrant was returned to this Court on 19-2-1991 i.e. after this Court had issued show cause notice for his personal appearance on 25-2-1991. Shri Mathur orally submitted that work of service of notice of warrants of this Court is being looked after by the office of A.P.P. who is no longer under his administrative control and hence his office is helpless in the matter. This Court reminded him of his obligations under the Code of Criminal Procedure and connected laws and informed him that administration of criminal justice would become impossible if District Police adopts such an attitude. Shri Mathur remained unperturbed. His face remained grim and motionless. There was neither any regret nor remorse at the delay caused in disposal of this application. He remained unperturbed even when he was told by this Court that his attitude might force this Court to dismiss this application which was filed by the State itself. His attitude, to say the least, is deplorable.

5. The number of similar cases coming to this Court makes it feel that there is shift in the policy of police officials particularly S. Ps. towards this Court. Very recently the S. P., Raipur wrote to this Court that his office will not be able to serve this Court's notice at Saraipali because it was situated at a distance of 90 kms. from Raipur. This Court is not able to reduce the distance between Raipur and Saraipali and hence only thing that might help serve notice on the non-applicant was to change the attitude. Since there was no guarantee of this change, this Court was compelled to dismiss the State's application. This Court would hope that someone responsible for administering this State would find time to look into this matter and take remedial measures. This would also hope that the authority looking into this matter also notices that large number of cases remain pending in this Court only because of this non-cooperation. This Court would like these sentiments of this Court to be read and appreciated by citizens to voice their concern in the matter. It should be appreciated that this Court is not responsible for all the delays nor is it responsible for mounting arrears of cases in this Court and these problems would not be solved as long as police officials do not change their attitude.

6. The indifference, verging on disrespect, to the rule of law as displayed by Shri Rajiv Mathur when considered in the context of the fact that this is State's application, makes this Court feel that Vallabh Bhawan, the seat of power in the State and District police authorities are not one in prosecuting such applications. The protection which is the necessary consequence of non-cooperation by the District police has the effect of nullifying State's decision to file this application and may be taken to be a novel method of expressing disagreement with State's decision. This Court would like to hopefully think that Satna District police does not represent police officials of other districts and this case is the sole instance of this attitude. If this be true, this Court would expect the State to take necessary remedial measures so that police officials in other districts do not adopt this faith and attitude. The helplessness of this Court in getting the non-applicants arrested should cause concern among those believing that judiciary is really independent in this country. This constitutional faith has become a casualty in this case which illustrates its fragile nature and aspect. Since independence of judiciary is very dear to us, the tendency displayed by Shri Rajiv Mathur should be taken to be an effort to establish police raj and curbed now. 7. What should then be the order of this Court in this case ? This Court would not like to be influenced by the attitude of Shri Mathur and would prefer to ignore his and his office's efforts in the matter. If notice on this application issued by this Court had not been served on the non-applicants, this Court would have been left with no other alternative than to dismiss this application. Both the N As have however received notice as indicated in para 3 above and hence there is no impediment in deciding this application on merits. This Court would like to forget that it ever issued warrant of arrest of N A Swatantra Dhimar and that the said warrant was not served. Prosecution allegations against the N As and others are fully stated in the impugned order and are that the deceased Sardar Khan was sitting inside the public bus, which was standing at the bus stand when he was dragged by four accused persons, out of it. Two other accused persons thereafter joined the four to give beating to the deceased by using lathis, dandas and axe. N A Gyan Singh is alleged to have hit the deceased on the head by the axe causing the incised injury, which eventually proved fatal. The N A Swatantra Dhimar is alleged to have used a lathi to assault the deceased. The post mortem report indicates that the deceased had suffered not only the fatal head injury but also 2 contusions and 3 abrasions on his person. Since the N A Swatantra Dhimar used lathi and did not cause the fatal injury, the learned Sessions Judge felt that he was not responsible for the death. This, in the opinion of this Court, is a piece of perversity and legal ignorance. The prosecution has charged this non-applicant Under Section 302 read with Section 149, Indian Penal Code under which every member of an unlawful assembly is responsible for act of every other member. The manner in which Sardar Khan was killed in a public place leaves no doubt in the mind of this Court that this N A was justifiably charged as aforesaid. It could therefore not be said that this N A was not involved in the offence punishable with death or imprisonment for life. Bar of Section 437(1), Criminal Procedure Code would therefore become operative disentitling this N A to an order for release on bail. Then the discretion vested in the Sessions Judge cannot be arbitrarily exercised. Killing an innocent person in a public place is not something to be taken lightly. Such persons do not deserve that privilege. This Court is therefore of the opinion that the learned Sessions Judge has arbitrarily exercised the discretion. Considering the vast experience and knowledge that the learned Sessions Judge has of such cases, it is not possible to believe that he has innocently granted the privilege. In fact, the manner in which first application of these N As was dismissed as not pressed on 16-2-1990 and the fact that these N As remained absconding thereafter, indicates that the N As had surrendered in the Court only when they became sure of obtaining order in their favour. The manner in which their application for anticipatory bail was decided as application Under Section 439, Criminal Procedure Code instead of being dismissed as infructuous, only re-enforces this thought. There are, therefore sufficient reasons to doubt the bona fide of the impugned order. Indeed this Court thinks that there are sufficient reasons to doubt the honesty and integrity of the learned Sessions Judge.

8. Could bail be granted to the non-applicant Gyan Singh for medical check-up ? This Court is of the opinion that the learned Sessions Judge has exceeded his jurisdiction in the matter. He should have noticed Section 437(1), Criminal Procedure Code which bars grant of bail in cases where there are reasonable grounds to hold commission of offence punishable with death or imprisonment for life. The facts of this case sufficiently indicate commission of such an offence and hence the learned Judge had no jurisdiction to grant bail. Then, hypertension and depression is not a disease which could not be cured at hospitals maintained by the State Government. Apparently therefore order of release of N A Gyan Singh on bail was illegal. It is therefore revoked. If this N A has not surrendered so far, he shall be arrested and committed to prison during the pendency of the case. Sessions Judge, Panna who has accepted the bail bond shall take necessary action at once.

9. Committing offence in a public place in the manner aforesaid indicates that the N As are dare devils having no regard to law. In such cases, discretion to grant bail should not be exercised in favour of accused persons as it has the effect of demoralising the society and giving undue importance to crimes and criminals. Interest of society is an important consideration in such matters.

9A. There is yet another reason why this Court feels justified in revoking the order of bail in favour of non-applicants. The State alleges that Rajab Khan, the brother of deceased Sardar Khan had been threatened by four unidentified persons with dire consequences, if he or any one else gives evidence against accused persons involved in the murder. A copy of the F.I.R. recorded on 21-2-1990 is also filed with the application as Annexure-B. There is no denial of the incident and hence it is reasonable to hold that efforts are being made to influence witnesses. Though there is no direct allegation against the non-applicants, but their being instrumental to this cannot be ruled out. Possibility of witnesses being influenced is an important consideration in the matter of an application Under Section 439(2), Criminal Procedure Code.

10. The application succeeds and is allowed. Bail orders in favour of N As Gyan Singh and Swatantra Dhimar are hereby revoked. They are directed to surrender before the Sessions Judge/CJM before whom they furnished bail bonds immediately. On failure to so surrender, the Sessions Judge/CJM shall take immediate steps to get them arrested and send them to jail, pending trial.

11. A copy of this order shall be sent to the Legal Remembrancer of the State to take note of observations in paras 4 and 5 above.