NARSINH REVAJI AYACHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) TWO petitioners who are father and son have made this application under sec. 438 of the Code of Criminal Procedure for obtaining an order of anticipatory bail. The record discloses that petitioner No. 1 is accused of having committed murder of one Vira Ibrahim and be is going to be charged with having committed an offence punishable under sec. 362 of the Indian Penal Code. Sec. 437 of the Code of Criminal Procedure expressly provides that an accused shall not be released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life. There is no doubt about the fact that petitioner No. 1 has been charged with an offence punishable with death or imprisonment for life. Therefore under sub-sec. (1) of sec. 437 he is not entitled to bail unlike any other offender. Sec. 438 of the Code of Criminal Procedure does not make any express or specific reference to an offence punishable with death or life imprisonment. However in our opinion secs. 437 and 438 have got to be read together because it is inconceivable that an accused charged with having committed murder is entitled to anticipatory bail under sec. 438 even if he is not entitled to bail under sec. 437. To take the view that the benefit of sec. 438 is available to all accused including persons accused of having committed murder is to defeat the provisions of sec. 437. If such a person is released on anticipatory bail he will always continue to remain on bail until the trial is over. In such a case the bar enacted by sec. 437 will never become operative. We are therefore of the view that a person accused of having committed murder is not entitled to anticipatory bail under sec. 438 of the Code of Criminal Procedure.

(2.) The police officer has filed an affidavit herein which shows that petitioner No. 1 is accused of having committed murder of Vira lbrahim and that he had got evidence in that behalf. Mr. Shah has raised the contention that the police have in the course of their investigation recorded More than 300 statements and that copies of those statements should be furnished to the petitioners in order that they can effectively meet the affidavit which the police officer has made. Investigation is not yet over. In our opinion before the investigations over a murder accused cannot as of right demand copies of police statements. If copies of statements are given to him it will in all probability prejudice further investigation. It is quite likely that he may try to fabricate evidence in some other manner. It is also quite probable that he may temper with investigation which is yet to be done. Therefore in the very nature of things unless the police has no objection copies of statements recorded by them cannot be ordered to be furnished to a murder accused before the investigation is over.

(3.) In KOTTAM RAJA VIKRAM RAO V. THE STATE 18 G L R. 107 a learned Single Judge of this court has interpreted sub-sec. (5) of sec. 173 and come to the conclusion that it enacts an implied bar against giving copies of police statements to an accused before the investigation is over. Mr. Shah who appears on behalf of the petitioners has argued that decision does not lay down the correct principle because in his view sub-sec. (5) of sec. 173 does not enact such an implied bar. It is not necessary to examine his argument in details because for the purpose of this case it is not necessary for us to express any opinion on the soundness or otherwise of that decision. Even assuming that sub-sec. (5) of sec. 173 does not imply such a bar copies of police statements unless the police agree cannot be ordered to be given to an accused before the investigation is over. However in order to satisfy ourselves whether the affidavit made by the police officer is correct or not we ourselves have looked into the police statements produced before us. We are satisfied that the affidavit which the police officer has made in the instant case is correct. There is evidence on record which accuses petitioner No. 1 of having committed murder of Vira Ibrahim. Mr. Shah in this context has further argued that if the entire record is made available to him he will be able to point out that the police are trying to make out a false case against petitioner No. 1. The court may peruse the entire record in order to satisfy that there is a prima facie case against the accused but an accused cannot be ordered to be given before the investigation is over copies of police statements. We have pointed out one danger of succumbing to the argument which Mr. Shah has raised before us. The second danger is that if copies are given to the accused at such a state then there will be affidavits and counter affidavits controverting denying and asserting what has been stated in the police statements. It will lead to a trial in the midst of investigation before the actual sessions trial commerces. Therefore to accede to the argument which Mo. Shah has raised is to upset the apple cart of criminal investigations. It cannot be done. We may also state that the First Information Report which the police received within about five hours of Vira Ibrahim having been murdered discloses the name of petitioner No. 1. We may also state that at the stage of anticipatory bail and particularly when the police investigation is not over we cannot look into police papers weigh the evidence pros and cons and come to the conclusion whether the police case against the accused is tenable or not. To do so is to again hold a trial before the actual trial is held. All that we are required to be satisfied with is whether there is prima facie case against the accused. In the instant case we are satisfied that there is a prima facie case against petitioner No. 1.