ROOP CHAND Vs. STATE

JUDGEMENT

(1.) By this order I will dispose of two petitions one filed by Roop Chand (Cr. M. (M) 1228/87] and the other by Kalu Ram [Cr. M. (M) 1287187] both filed under S.439 of the Code of Criminal Procedure (for short the Code) seeking their release on bail. Both the petitioners are brothers. They alongwith 19 or 20 other accused are facing trial for offences under Ss. 147/148/149/341/427/329/307/302/120B, Indian Penal Code . All the co-accused except the petitioners have been released on bail. Teja, one of the co-accused, is presently on interim bail. A cross-case has also been registered against the complainant party which consists of 19 accused. They are also facing trial for similar offences except S. 302 Indian Penal Code . All of them have been released on bail.

(2.) These are third or fourth applications of the petitioners, their last applications haying been dismissed 10th August, 1987. Challan in the case has already been filed and I am told that first date of hearing was 1-5-1987. The incident on account of which these cross-cases have been registered is stated to have happened on 2-11-1986. Earlier petitions for release on bail of the present two petitioners as well as Teja were dismissed principally on the ground that they were the assailants named in the first information report as having caused injuries to Bisram who succumbed to his injuries.

(3.) In support of his contention about the maintainbility of the successive bail petitions, Mr. P.S. Sharma, learned counsel for the petitioners, referred to a decision of the Supreme Court in Babu Singh v. State of U.P. (AIR 1978 SC 527x1). In this the Supreme Court held that an order refusing an application for bail did not necessarily preclude another, on a later occasion, giving more materials, further developments and. different considerations. Mr. Sharma said that he had a legal submission to put forward for the release of the petitioners on bail. He stated that the provisions of Ss. 157 and 158 of the Code are mandatory in character and since these provisions had been violated in the present case, the petitioners were entitled to be released on bail. Under sub-s. (1) of S. 157 the officer in charge of a police station has to "forthwith" send a report of the commission of a cognizable offence to the magistrate empowered to take cognizance of such an offence upon a police report and then to proceed to the, spot where the offence is said to have been committed or deputs another officer of the rank prescribed for the purpose. S. 158 prescribes as to how the report under S. 157 is to be submitted. In support of his contention Mr. Sharma referred to a decision of the Allahabad High Court in Ahmad Nabi & anr. v. State of U.P. [1987 (1) Crimes 85] (2). In this the court did observe that the provisions of Ss. 157 and 158 of the Code were mandatory and as primafacie there was non-compliance with these provisions and so also with the provisions of S. 173 the accused in that case were entitled to be released on bail. Then, Mr. Sharma referred to a decision of the Supreme Court in Marudanal August v. State of Kerala [1980 SCC (Cri) 985] (3). In this, the Supreme Court observed that the delay of as many as 29 hours in the receipted the F.I.P. by the magistrate concerned coupled with other circumstances cast serious doubts on the 'prosecution case and, therefore, set aside the conviction of the accused persons. Reference was also made to a Bench decision of the Punjab and Haryana High Court in Kamalit Singh v. State of Punjab (1980 Cri. LJ. 542) (4) where there was no explanation for the delay of about 10 hours in sending the F.I.R to the court of the magistrate and the court observed that file delay provided legitimate basis for the suspicion that the F.I.R. was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishment and set up distorted version. of the occurrence..