1976 PLP R168 (SCMR)

The learned Judge was also of the view that the facts alleged against the petitioners would establish an offence under section 367, P. P. C., as well, because "as soon as the complainant and his companions were forcibly dragged out the car, the offence of abduction had been committed." Therefore, even though no case had been registered under section 367, P. P. C., nor had the said o7ence been added afterward yet the allegations, prima fade, disclosed an offence under section 347, P. P. C. which falls under the prohibitory clause of subsection (1) of section 497, Cr. P. C." The petitioners have now again come up to this Court for special leave to appeal and it !s contended on their behalf that the allegations contained in the F. I. R. neither made out an offence under section 307 nor an offence under section 367, P. P. C. The learned Judge eras also, it is contended, wrong to import anew case under section 367, P. P. C., even though the complainant himself had not alleged any such offence. It is further pointed out on behalf of the petitioners that even under section 307, it must at least be shown that the bodily injury caused was either "sufficient 1A the ordinary course of nature to cause death" or that the accused caused such bodily injury as he knew to be so "imminently dangerous that it would in all probability be likely to cause death'. Neither of these ingredients were made out by the allegations in the F. I. R. Even in the case of an offence under, section 367, P. P. C., mere abduction is not enough but the abduction has to be for either or one of the purposes mentioned in the said section. In the present case, the allegations made in the F. I. R. it is contended, do not establish these ingredients, for, the injuries was alleged to have been caused immediately after the persons were dragged out of the car at the railway level crossing. Our attention has also been drawn to sections 340 and 365 of the P. P. C. The first deals with wrongful restraint or wrongful comment of a person and the other deals with kidnapping or abducting with intent to cause the person so abducted to be secretly and wrongfully confined. These sections were, it is said, more appropriated attracted but they were not adverted to as neither of these offences came within the mischief of subsection of section 407 of the Cr. P. C. It is further urged on behalf of the petitioners that at the worst, the allegations made in the F. I. R did not take the case beyond the offence mentioned in section 365, P. P. C. Merely dragging out of the car is,. therefore, 'not enough to establish, as tire High Court seems to has erroneously conjectured, an offence under section 367, P. P. C. Learned counsel for the petitioners also points out that this is a case, which even on the allegations in the F.

1. R., was only a ease of a chance encounter, for, the accused could not possibly have known that the complainant would be going to meet the D. S. P. at Gujrat, that the latter would not be available there and that' the complainant would then return by a particular road and that he would be stopped at the railway crossing on his way back. If the railway crossing had not been closed, there would have been no possibility of the accused persons catching up with the complainant's car. The accused could not possibly have contrived the closing of the railway crossing gates. The learned Assistant Advocate‑General and the son of the complainant, who has been added as a party in the present case, on his own application, have on the other hand contended that the medical report clearly establishes an offence under section 307, and since that is punishable with imprisonment for life, the bail was rightly refused by the High Court. The accused, it is said, must have known that the complainant being such an aged and weak person would be likely to die even as a result of injuries caused by kicks, and blows by the butts of stenguns and rifles. This was, therefore, sufficient to establish that the accused knew that the injuries that they were causing were so imminently dangerous as were likely to cause death. The fractures found upon medical examination also confirmed the seriousness of the injuries caused. We do not wish to make any observation as to the merits of the case one way or the other, lest it should prejudice either side in these proceedings, but the medical report does not, in our view, disclose that any one of the injuries was either such as would be likely to result in death In the usual course of nature or such as can be said to be so imminently dangerous as to be likely to cause death. Whether the accused persons had the intention or knowledge necessary to constitute an offence under section 307, P. P. C. will, of course, depend upon the evidence that may be adduced in the case. For the purposes of this bail matter, however, we do not consider it advisable to go into these allegations in any detail but it will be sufficient to say that prima facie, on the basis of the material now on the record, no clear case under section 307, P. P. C. has been made out. It will, of course, depend upon the evidence which might be adduced in the case and we do not wish in any way to influence the Court, which will be trying the accused persons. It will be free to decide according to the evidence without being influenced by any observation in this order. We are also unable to agree that what has been done by the High Court, namely; importing a new offence with which the accused persons had not been charged, was proper. In our view, the case as laid down in the F. I. R. does not come within the mischief of subsection (1) B of section 497, Cr. P. C. We are, in no way, influenced by the fact that the first petitioner in this case is an Ex‑Minister or Member of the Provincial Assembly, because a crime has been committed by a person, then no matter how high the position of that person, it is only right that he should be brought to book. But so far as the question of bail is concerned, we are unable to agree with the High Court that on the allegations in the, F. I. R: and the other material on the record, any clear case either under section 307 or 367, P. P. C. has been made out. There is no allegation in this case that the accused persons are not cooperating with the investigation or that they are likely to interfere with the witnesses or, in any other way, obstruct the investigation. There is also no possibility of the petitioners absconding. In this connection, it is also to be noticed that the only allegation against tile petitioner No. 1 is that he caused injuries by kicks to the complainant. According to the F. I. R. the petitioner No. 1 has been, armed with a stengun, but there is no allegation in the F. I. R. that any blow was struck by him with the butt of the stengun. According to the complainant's own statement in the F. I. R. after he was released, he walked to the G. T. Road and then returned to Wazirabad by bus. This also does not show that he was so grievously injured that he was not in a position to be able to move about. Taking all these circumstances into consideration, we are of the opinion that this is a fit case in which the petitioners should have been treated in the same manner as the other co‑accused and enlarged on bail. We, accordingly, as already indicated in the short order dictated on the 1st July 1975, convert this petition into an appeal, allow the same and enlarge the present petitioners on bail in the sum of Rs. 50,000 each and one surety of the like amount in such case to the satisfaction of the Assistant Commissioner, Gujrat. If the petitioners are committed for trial to the Court of Session for any offence or if they are tried and convicted by the Magistrate himself, the committing Magistrate or the convicting Magistrate, as the case may be, will be at full liberty to cancel the bail hereby granted. The petitioners are also directed, as a condition of this bail, to report every Monday at 10 a.m. at Police Station Saddar Gujrat, until the challan is filed before a Magistrate. If they interfere with or obstruct the investigation in any way of refuse to cooperate in the investigation, the prosecution will have the right to apply for the cancellation of bail hereby granted. Bail allowed.