Courts Update Supreme Court sets aside HC order, says the request...

Supreme Court sets aside HC order, says the request for bail on parity with co-accused can be rejected

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New Delhi Sept 28(ILNS): The Supreme Court while setting aside the order of the Rajasthan High Court granting bail to the accused observed that the High Court erred in stating that the Police had “developed a case” which is contrary to the findings of the first forensic report of the deceased, thereby granting the benefit of contrary findings of two reports.

A bench comprised of Justice DY Chandrachud and Justice BV Nagarathna deciding on the bail application observed that the plea of parity with other accused who are already enlarged on bail cannot be used since the allegations in the FIR and the material that has emerged from the investigation indicate that a major role has been attributed to main accused in the murder of the deceased.

 “The consideration that twenty-five witnesses out of seventy-six witnesses had been examined must equally be weighed with the seriousness of the crime, the role attributed to the accused, and the likelihood of the evidence being tampered with if he were to remain on bail during the course of the trial” the bench observed.

The Appellant who is the father of the deceased challenged the High Court order wherein the accused was granted bail. The accused who is a constable at Anti Corruption Branch was charged under section 302 r/w 120-B IPC after an FIR was lodged on behest of the appellant. The facts of the case states that the deceased was found near the railway track, the case was intimated by the appellant (father of deceased) to the SHO under section 174 CrPC. However, no action was taken. On the next day, a post-mortem was conducted by a Medical Board which reported that the right lung, liver, spleen and kidneys were congested. It was also stated that viscera (internal organs) was preserved for chemical and histopathological examination and a final opinion regarding the cause of death. Thereafter the appellant again submitted an application to the Superintendent of Police for the registration of an FIR. The appellant then submitted an application, after 20 days of incident, on which the Chief Judicial Magistrate of Jhalawar ordered an investigation. The first FSL report stated that lungs of the deceased showed signs of congestion and pulmonary edema. Thereafter, after 28 days of delay FIR was lodged. The other co-accused including the wife of the deceased was arrested. However the main accused was found to be absconding.

Thereafter, during the process of investigation it was found out that the death of the deceased had occurred by injecting him with ketamine, an anesthetic drug, information revealed by another co-accused. A resident of the place stated in his statement recorded under section 161 CrPC that he allegedly saw the main accused (bail applicant) along with two other persons in a Ford Figo vehicle near the place of incident. Another statement by a witness and relative of the main accused, he stated that he saw the accused at the Forensic lab on 3 different dates. Several Phone records were investigated and it was found that there were exchanges of calls between the accused and the deceased’s wife. Post 4 months of the incident, a vial of ketamine and syringe were alleged to have been discovered in consequence of information received from one of the accused. Furthermore, mobile phone of the wife of the deceased was seized and it showed that she had been in constant touch with the main accused even after the death of her husband. It is further alleged that after 6 months of incident, the police recovered an empty vial of ketamine, a syringe, mobile cover and a pair of glasses (spectacles) belonging to the deceased in consequence of the information furnished by the main accused under Section 27 of the Indian Evidence Act 1872. After 8 months of the incident, a report of the State FSL at Jaipur indicated that viscera had tested positive for the presence of the drug, Ketamine.            

Ms. Chitrangda Rastravara, counsel for the father of deceased argued that, There was no delay on the part of the appellant in lodging the written intimation immediately after the incident, police initially failed to register the FIR and it was only after 4 months that FIR was registered, charge-sheet has been filed after investigation and though the case ultimately rests on circumstantial evidence, there is sufficient material on record, at this stage, to indicate the involvement of the accused; FSL report indicates the presence of the drug Ketamine while even the earlier report which has been brought on record demonstrates pulmonary edema in the lungs of the deceased, which was a likely consequence of the administration of Ketamine; The High Court in granting bail has failed to notice the seriousness and gravity of the crime involving the murder of the appellant’s son, who was employed with the Intelligence Bureau in New Delhi; There is every likelihood of the evidence being tampered with if the accused who is a constable at ACB if enlarged on bail; the wife of deceased was only released on bail since she had an infant of eleven months which is a special circumstance. Thus, the prime accused cannot claim parity with other co-accused.

On the other other, Senior Advocate Siddharth Dave appearing for the accused argued that the FIR was delayed, the recovery of diary stating the visit of accused at FSL and presence of vials cannot be taken as evidence, the initial FSL report did not contain a reference to the presence of Ketamine while it is only in a subsequent FSL report that traces of the drug have been noticed. The statement given by one local does not disclose that the deceased and accused were last seen together. Further, the witness has made a profession out of appearing as witness in many cases.

Observing the detailed facts and present progress of the case before the trial court, the court stated that, “The High Court ought to have had due regard to the seriousness and gravity of the crime. The deceased was employed with the Intelligence Bureau in New Delhi. The first respondent (accused) is an employee of the Anti-Corruption Bureau at Jhalawar. The material which has emerged during the course of investigation cannot simply be ignored or glossed over… it is inappropriate to enter upon matters which would form the subject of the trial when evidence is adduced by the prosecution. Bail was granted to the co-accused Anita Meena primarily and substantially on the ground that she had a child of eleven months with her in jail. This cannot be the basis to a claim of parity.”/ILNS/KR/SNG

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