MAHENDRA KUMAR Vs. STATE OF U.P.

JUDGEMENT

(1.) -This is an application for bail by one Mahendra Kumar said to be involved in case crime No. 258A/94 State Vs. Mahendra Kumar & others under Sec. 302 of IPC, P.S. Mansurpur, district Muzaffarnagar. It needs a detailed order in view of the peculiar circumstances which have been the basis of the arrest in this case.

(2.) It appears that the involvement of this applicant has itself been put into record in rather dubious manner. The facts as shown from various papers on record and as suggested at the bar are in the form that one Bhura had died in a rather unusual circumstances on 27.8.94. Possibly he was taken out of a dry well and died after some time. He also had few injuries on his person. This dry well is somewhere near the house of Mahendra Kumar. A report in this behalf was made by Mahendra Kumar himself conveying that there was some disturbance in the night at his crusher and it appeared that somebody had fallen in the well. He was taken out in the morning in presence of several people but he died soon thereafter. After this, a complaint has been lodged on 7.12.94 by one Mahendra before CJM Muzaffarnagr, conveying that his brother Bhura was sent for by Shri Mahendra Kumar in the evening of 26.8.94 but he did not return. It was also conveyed that he had come to know that he was murdered and all his effort to lodge a first information report with the police and letters to Superintendent of Police :tad gone in vain. He desired through this complaint That Shri Mahendra Kumar be got punished at the hands of law and the police station Mansurpur be directed to record his FIR. It appears that the CJM directed on this complaint that the Station Officer, Mansurpur, will register the case and conduct the investigation. Whether the investigation has proceeded or not is not known but of course Mahendra Kumar has been arrested and his bail application has been rejected both by the CJM concerned as well as by the Sessions Judge.

(3.) Learned counsel for the applicant has urged with reference to the decision in the case of H.S. Bains Vs. State, 1981 (18) ACC (SC) ' that the authority of Magistrate in directing the investigation is limited one and in any case there could not be any occasion for the arrest and consequently the applicant is entitled to bail. There appears force in this contention, as observed in the above said decision by the Honourable Supreme Court. A Magistrate on receipt of a complaint, even if he orders an investigation under Sec. 156 (2) and receives a police report, may do one of the three things :