K.S.P Radhakrishnan, J.— Leave granted. Can the Additional Sessions Judge while dealing with an application for anticipatory bail filed under Section 438 of the Code of Criminal Procedure, 1973 (for short CrPC), express his opinion on merits that no case is made out under Section 326 IPC, even when the investigation is not yet over?
2. The appellant herein was the complainant from whom the statement under Section 161 CrPC was recorded on 28-5-2012. The statement records that, at about 11.00 p.m on 25-5-2012, the appellant went to sleep at the rooftop of his house and his wife Shamina and his cousin sister Chandani were sleeping in the room. At about 2.30 a.m on 26-5-2012, they made hue and cry and shouted for help. On hearing this, the complainant came down and saw that the in-laws of Chandani, namely, Hazi Saleem (father-in-law), Azad (devar), Taslim (uncle-in-law) and Noushad (brother-in-law) were dragging Chandani, which was objected to by the complainant. Noushad and Azad then caught hold of him and Taslim fired at him with the gun injuring his both legs from back side and they ran away from the spot.
3. FIR was also lodged by the Sub-Inspector Lalaram on 26-5-2012 at 4.55 a.m on the date of occurrence itself, wherein it was recorded that the complainant, immediately after the incident, was taken to GTB Hospital from where MLC No. B-2309 of 2012 was obtained on which the opinion given by the doctor was recorded. The injury, though simple, it was recorded, was due to the result of gunshot. On the basis of the same, a case under Section 326 IPC was registered.
4. Respondents 2-4 approached the Court of the Additional Sessions Judge, NCT of Delhi for seeking anticipatory bail. The application was opposed by the appellant complainant as well as the State. The learned Additional Sessions Judge, however, passed the following order:
“Perusal of the record reveals that as per the opinion of the expert, the nature of the injury sustained by the injured is simple and as such the ingredients of the offence under Section 326 IPC are not satisfied in the present set of circumstances. Further keeping in view that the applicants are having permanent base in Delhi and they have root in the society and they are also ready to join the investigation as and when required by the IO, I hereby allow the application with the direction to the accused persons to join the investigation as and when required by the IO and in case IO still feels the necessity of the arrest of the accused persons then he will enlarge them on furnishing of personal bond in the sum of Rs 25,000 with one local surety of the like amount to the satisfaction of IO/SHO.”
5. The appellant complainant, aggrieved by the same, approached the High Court by filing Crl. MC No. 3021 of 2012 for cancellation of the bail, which was rejected Crl. MC No. 3021 of 2012 by the Court holding that the cancellation of bail could take place only for rare and compelling reasons and that the case in question did not fall within the aforesaid pigeonhole. Aggrieved by the same, appellant has come up with this appeal.
6. Shri N.S Dalal, learned counsel appearing for the appellant, submitted that the courts below are not justified in granting anticipatory bail to Respondents 2-4, especially when the investigation is not over. The learned counsel also submitted that the FIR clearly indicates the use of firearm, by which the complainant received gunshot injury, which attracts the offence under Section 307 IPC. The learned counsel also submitted that the learned Additional Sessions Judge is not justified in expressing the opinion that since the injury is simple, no offence under Section 326 IPC has been made out, especially when the investigation is yet to be completed.
7. The learned counsel also pointed out that the custodial interrogation is absolutely necessary for proper investigation and since Respondents 2-4 are on anticipatory bail, investigation has been not proceeded in the right direction and that they are not cooperating with the investigation and the recovery of gun could not be effected so far. The learned counsel submitted that, in any view, this is not a case where anticipatory bail could be granted. In support of his contention, reference was made to the judgments of this Court in State v. Anil Sharma (1997) 7 SCC 187, State of A.P v. Bimal Krishna Kundu (1997) 8 SCC 104, 1997 Supp (4) SCR 412, Jai Prakash Singh v. State of Bihar (2012) 4 SCC 379 and Rashmi Rekha Thatoi v. State of Orissa (2012) 5 SCC 690.
8. The learned counsel appearing for Respondents 2-4 referred to some matrimonial disputes between Saleem (second respondent) and cousin sister of the appellant and also to the civil disputes pending between the parties. Further, it was also pointed out that the story put up by the complainant is incorrect and that the respondents have roots in the society and they are always willing to cooperate with the investigation. Further, it was also pointed out that the medical reports would show that the alleged injuries are of simple nature and no offence under Section 326 IPC has been made out. In support of his contention, reference was made to the judgment of this Court in Savitri Agarwal v. State of Maharashtra (2009) 8 SCC 325 and submitted that the learned Sessions Judge has rightly granted anticipatory bail, also affirmed by the High Court, warranting no interference by this Court.
9. Shri Sidharth Luthra, learned Additional Solicitor General appearing for the State, submitted that, despite the order dated 16-7-2013 SLP (Cri) No. 8512 of 2012, (2014) 13 SCC 579 (F7) of this Court, all the four accused persons have failed to disclose the source of pistol which was used in the offence and are not cooperating in the investigation. He also pointed out that, on going through the records and evidence collected during the course of investigation, the police has added Section 307 IPC and Section 25 of the Arms Act. The State has, thus, supported the plea of the appellant for cancellation of the anticipatory bail.
10. We have heard the counsel on either side at length and also perused the FIR as well as MLC No. B-2309/12 of GTB Hospital, wherein the injuries sustained have been recorded as follows:
“(1) Multiple small pellet wounds (+) over back of both lower limbs extending from back to mid-thighs to back of legs each measuring about 2 mm in diameter.
(2) No external injury marks over back.
(3) A pellet wound (+) over right middle finger.
(4) No external neurovascular deficit.”
11. On 26-5-2012, the complainant Nasirruddin, after having been discharged from the hospital, went to the police station and made his statement under Section 161 CrPC. On the same day, the investigating officer also recorded the statement of Shamina, the wife of the complainant as well as the statement of Chandani, the wife of Shehzaad. The statement of Chandani was recorded under Section 164 CrPC on 29-5-2012 in which she narrated the role of all the accused i.e Respondents 2-4. The abovementioned statements would indicate that the accused Tasleem told Azar and Noushad to apprehend the appellant and Tasleem fired at the appellant with a country-made pistol, which was brought by Tasleem at the spot of the incident. On hearing the cries and also the gunshot, the neighbours of the appellant gathered near the spot and on seeing them, Respondents 2-4 ran away from the spot.
12. We are informed that none of the accused persons had disclosed the source from which the weapon and bullets were procured and that the investigating officer has pointed out that the offence under Section 201 would be charged if the weapon is not traced/recovered. Above facts would clearly indicate that this is not a fit case for granting anticipatory bail, especially when the investigation is not over and the weapon used in the offence is yet to be traced. The medical report refers to the gunshot injury on the body of the appellant. FIR was also found promptly registered. The question as to whether the case will fall under Section 326 IPC could be determined only after the investigation is completed. The learned Additional Sessions Judge, while granting anticipatory bail, opined that after having considered the medical report, the ingredients of Section 326 IPC have not been satisfied. We are of the view that it was too early for the learned Additional Sessions Judge to express any opinion merely looking at the medical report. Medical report positively indicates of gunshot injury, may be simple, and it is due to that reason that the police has added the offences under Section 307 IPC as well as Section 25 of the Arms Act.
13. Above being the factual situation, in our view, the learned Additional Sessions Judge has committed an error in granting anticipatory bail to Respondents 2-4, which was affirmed Crl. MC No. 3021 of 2012 by the High Court. Consequently, the appeal is allowed and the order passed by the Additional Sessions Judge and the affirmation order Crl. MC No. 3021 of 2012 passed by the High Court, are set aside. However, Respondents 2-4, if so advised, may apply for regular bail before the trial court and the trial court may consider the same in accordance with law.