This is art application bad in a case registered under sections 326/307 rear) with 34, Y. P. C. Vide F. 1.
R. (Annex. A). The learned counsel for tire petitioner hats raised the following contentions: -
(i) that the opinion of the doctor in respect of the injury does not conclusively determine that it is grievous ;
(ii) that no distance is mentioned in the F. I. R. Showing the range from which the shot was fired that the fact that only one pellet hit a person whir could not be made the target of the lire ,hot, in the circumstances of the case, shows that it was a in stray pellet which hit the injured person; and that it does not necessarily mean that the lire shot in fact was aimed at somebody;
(iii) that even if the story disclosed in the F.
1. R. Is accepted, it shows that the injury wars caused as a result of sudden fight on a sudden quarrel with how premeditation ; and lastly
(iv) that the f). S. P., who riot only supervised the investigation but also heard the witnesses produced by both the parties and also examined the record relevant to the previous litigation on the Ihata in dispute, has conic to the conclusion that the petitioner was riot present at the spot at the time of occurrence.
In support of the last contention the learned counsel has relied on Ch. Abdul Malik v. The State (PLD'1968 SC 349) which was followed in Ibrahim v. The State (1969 P Cr. L J 111).
2. The learned Advocate-General has stated that the challan has not yet been submitted. Lie has, however, brought to my notice a portion of the report of the h. S. P. (in his last Zimni of the case) where the latter has stated that the petitioner was not present at the time and place of occurrence ; nevertheless, lie the D. S. P.) thought drat tire case should be Sent up for trial of the petitioner along with other because the violence and its cause should be enquired into. On this basis, the learned Advocate General contends that the report of the D. S. P., as he put it, "leads its nowhere" therefore, the question of bail should be decided without taking note of it
3. The Police file has been perused. It shows two important facts: -
(i) that the D. S. P, examined the witnesses from both the sides and that the evidence produced by the petitioner included witnesses to prove his alibi and (ii') that the petitioner produced such evidence before the D. S. P- from which the latter concluded that the possibility of false implication of the petitioner, at the instance of his enemies, could not be excluded.
It was after noticing the evidence mentioned above that the D. S. P. Came to the conclusion that the petitioner was not present at the time of occurrence. This would show that even if the comment by the D, S, P. Is treated as opinion it is not based on mere con---jecture. It appears that by way of abundant caution the D. S. P. Avoided taking the responsibility of giving a verdict of not guilty in favour of the petitioner and wanted the matter to be tried in and decided by the Court. That is why, in the concluding portion of his report he referred to another important circumstance; that according to him the complainant party has not disclosed the truth, lie further observed that the complainant is simpleton and that he appeared to have been misled by the enemies of the petitioner.. After this observation he again commented that the case was weak but the question of enmity, in his opinion, should be decided by the Court.
4. My reading of this report is that the D. S. P. Believed, on material placed before him, that there were no reasonable grounds for believing that the petitioner was guilty of the offence charged; but at the same time he was of the opinion that there were sufficient grounds for further enquiry into the matter. Therefore, he ordered the S. H. O. To submit a challan report under section 173, Cr. P C.
On such an opinion having been formed by a responsible. Police Officer, who in all respects was In- -charge of the investigation at the time that the inside the report, the petitioner could be released on bail under subsection (2) of section 497, Cr. P. C by the Police Officer mentioned therein and in any case by the Court.
Sub section; 21 of section 497 reads as follows:--
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed (a non-bailable offence), but that there are sufficient grounds for further inquiry into his guilt, 'the accused shall pending such inquiry, be released on bail, or, at the discretion of such officer or Coon 'on the execution by him of a bond without sureties to, his appearance as hereinafter provided."
The law is clear that in the circumstances stated above, it is mandatory, also, for the Police Officer to release a person on bail, even if he is accused of any non-bailable offence. In this case the Police and the learned Courts below have not applied the law as interpreted and explained above.
The matter has now it, come before this Court under section 498, Cr. P. C. Which is a provision ancillary to section 497, Cr. P. C. After considering all the facts and circumstances of this case discussed above I have come to the conclusion that according to the Police report/Zimni by the D.
S. P. There are not reasonable ground for believing that the petitioner has committed a non- bailable offence but sufficient grounds exist for further enquiry into his guilt. The case of the petitioner falls under section 497(2), Cr. P. C. And he has acquired a right to be released on bait. I therefore, hold that the petitioner is entitled to be released on bail. In this view of the matter it is not necessary to examine the other contentions raised by the learned counsel for the petitioner.
5. It is ordered that the petitioner shall be released on bail if he furnishes a bail bond in the sum of Rs. 3,000 (three thousand with one surety in the like amount to the satisfaction of A. D: M., The fact that the petitioner has been ordered to be raleased on bail under section 497(2) of the Cr.
P. C. Shall not influence the learned Magistrate in deciding the case on merits, in case the Police submits a challan report for trial. With these remarks and the above order this petition is disposed of.