NASIRUDDINversusSTATE (NCT) DELHI AND ORS.

                    [2013] 7 S.C.R. 1085


                       NASIRUDDIN                                  A
                             v.
              STATE (NCT) DELHI AND ORS.
            (Criminal Appeal No. 1128 of 2013)
                     AUGUST 07, 2013
                                                                   B
     [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

    CODE OF CRIMINAL PROCEDURE, 1973:

     s.438 - Anticipatory bail - Cancellation of - Investigation   c
against appellants for causing gun-shot injuries to
complainant, pending - Addi. Sessions Judge granting
anticipatory bail - Held: This is not a fit case for granting
anticipatory bail, especially when the investigation is not over
and the weapon used in the offence is yet to be traced - None      0
of the accused persons had disclosed the source from which
the weapon and bullets were procured - Additional Sessions
Judge, while granting anticipatory bail, opined that after
having considered the medical report, the ingredients of s.
326 /PC have not been satisfied - It was too early for the
Additional Sessions Judge to express any opinion merely            E
looking at the medical report, which, however, positively
indicates of gunshot injury, may be simple, and it is due to
that reason that the police has added the offences uls. 307
/PC as well as s. 25 of the Arms Act - Additional Sessions
Judge has committed an error in granting anticipatory bail to      F
respondents - Order passed by Additional Sessions Judge
and the affirmation order passed by High Court, are set aside.

    During the pendency of investigation in a case of
gun-shot injuries stated to have been caused to the                G
complainant, the Additional Sessions Judge granted
anticipatory bail to respondent nos. 2-4 observing that
having considered the medical report, ingredients of

                             1085                                  H
    1086    SUPREME COURT REPORTS              [2013] 7 S.C.R.

A s.326 IPC were not satisfied. The High Court affirmed the
  order.

       Allowing the appeal filed by the complainant, the
    Court
B        HELD: This is not a fit case for granting anticipatory
    bail, especially when the investigation is not over and the
    weapon used in the offence is yet to be traced. None of
    the accused persons had disclosed the source from
    which the weapon and bullets were procured and the
C   Investigating Officer has pointed out that the offence u/
    s. 20~ would be charged if the weapon is not traced/
    recovered. The medical report refers to the gunshot injury
    caused to the appellant. The FIR was also found promptly
    registered. The question as to whether the case will fall
D   u/s. 326. IPC could be determined only after the
    investigation is completed. It was too early for the
    Additional Sessions Judge to express any opinion merely
    looking at the medical report, which positively indicates
    of gunshot injury, may be simple, and it is due to that
E   reason that the police has added the offences u/s. 307
    IPC as well as s. 25 of the Arms Act. The Additional
    Sessions Judge has committed an error in- granting
    anticipatory bail to respondents 2-4. Consequently, the
    order passed by the Additional Sessions Judge and the
F   affirmation order passed by the High Court, are set aside.
    [Para 12-13] [1091-D-F, G-H; 1092-A·B]
      State Rep. by the CBI v. Anil Sharma· 1997 (3) Suppl.
  SCR 737 = (1997) 7 SCC 187, State of A.P. v. Bimal Krishna
  Kundu and Another 1997 (4) Suppl. SCR 412         =
                                                   (1997) 8
G SCC 104, Jai Prakash Singh v. State of Bihar and Another
                       =
  2012 (5) SCR 1 (2012) 4 SCC 379 and Rashmi Rekha
  Thatoi v. State of Orissa and Others 2012 (5) SCR 674 =
  (2012) 5 SCC 690; Savitri Agarwal and Others v. State of
  Maharashtra and Another 2009 (10 ) SCR 978        =
                                                   (2009) 8
H   sec 325 - cited.
         NASIRUDDIN v. STATE (NCT) DELHI                  1087


                     Case Law Reference:                           A

    1997 (3) Suppl. SCR 737          cited            para 7

    1997 (4) Suppl. SCR 412          cited            para 7

     2012 (5) SCR 1                  cited            para 7       B
    2012 (5) SCR 674                 cited            para 7

    2009 (10) SCR 978                cited            para 8

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1128 of2013.                                                   c
    From the judgment and Order dated 03.09.2012 of the
High Court of Delhi at New Delhi in Crl. ·M.C. No. 3021 of 2012.

    N.S. Dalal, D.P. Singh, M. Rein, R.C. Kaushik for the          D
Appellant.

    Sidharth Luthra, ASG, Mukul Gupta, Shiv Mangat Sharma,
Anjali Chauhan, Jaisleen Kaur, D.S. Mahra, Yunus Malik,
Shashank Singh, Prashant Chaudhary for the Respondents.
                                                                   E
    The Judgment of the Court was delivered by

     K.S. RADHAKRISHNAN, J. 1. Leave granted.

    2. Can the Additional Sessions Judge while dealing with
an application for anticipatory bail filed under Section 438 of    F
the Code of Criminal Procedure, 1973 (for short "CrPC"),
express his opinion on merits that no case is made out under
Section 326 IPC, even when the investigation is not yet over?

     3. Appellant herein was the complainant from whom the         G
statement under Section 161 CrPC was recorded on
28.5.2012. Statement records that, at about 11.00PM on
25.5.2012, the appellant went to sleep at the roof top of his
house and his wife Shamina and his cousin sister Chandani
were sleeping in the room. At about 2.30AM on 26.5.2012, they      H
    1088    SUPREME COURT REPORTS                   [2013] 7 S.C.R.


A made hue and cry and shouted for help. On hearing this, the
  complainant came down and saw that the In-laws of Chandani,
  namely, Hazi Saleem (father-in-law), Azad (devar), Taslim
  (uncle-in-law) and Noushad (brother-in-law) were dragging
  Chandani, which was objected by the complainant. Noushad
B and Azad then caught hold of him and Taslim fired at him with
  the gun injuring his both legs from back side and they ran away
  from the spot.

       4. FIR was also lodged by the Sub-Inspector Lalaram on
C 26.5.2012 at 4.55AM on the date of occurrence itself, wherein
  it was recorded that the complainant, immediately after the
  incident, was taken to G.T.B. Hospital from where MLC No. B-
  2309/12 was obtained on which the opinion given by the doctor
  was recorded. The injury, though simple, it was recorded, was
  due to the result of gunshot. On the basis of the same, a case
D under Section 326 IPC was registered.

       5. Respondents 2-4 approached the Court of the
  Additional Sessions Judge, NCT of Delhi for seeking
  anticipatory bail. The application was opposed by the appellant/
E complainant as well as the State. Learned Additional Sessions
  Judge, however, passed the following order:

              "Perusal of the record reveals that as per the opinion
        of the expert, the nature of the injury sustained by the
        injured is simple and as such the ingredients of the offence
F       U/s 326 IPC are not satisfied in the present set of
        circumstances. Further keeping in view that the applicants
        are having permanent base in Delhi and they have root in
        the society and they are also ready to join the investigation
        as and when required by the 10, I hereby allow the
G       application with the direction to the accused persons to join
        the investigation as and when required by the 10 and in
        case 10 still feels the necessity of the arrest of the accused
        persons then he will enlarge them on furnishing of personal
        bond in the sum of Rs.25,000/- with one local surety of the
H       like amount to the satisfaction of 10/SHO."
          NASIRUDDIN v. STATE (NCT) DELHI                     1089
             [K.S. RADHAKRISHNAN, J.]
                            '
     6. Appellant/Complainant, aggrieved by the same,                  A
approached the High Court by filing Crl. M.C. No. 3021/2012
for cancellation of the bail, which was rejected by the Court
holding that the cancellation of bail could take place only for rare
and compelling reasons and that the case in question did not
fall within the aforesaid pigeonhole. Aggrieved by the same,           B
appellant has come up with this appeal.

      7. Shri N. S. Dalal, learned counsel appearing for the
appellant, submitted that the Courts below are not justified in
granting anticipatory bail to respondents 2-4, especially when C
the investigation is not over. Learned counsel also submitted
that .the FIR clearly indicates the use of firearm, by which the
complainant received gunshot injury, which attracts offence
under Section 307 IPC. Learned counsel also submitted that
the learned Additional Sessions Judge is not justified in
expressing the opinion that since the injury is simple, no offence D
under Section 326 IPC has been made out, especially when
the investigation is yet t~ be completed. Learned counsel also
pointed out that the custodial interrogation is absoluteJy
necessary for proper investigation and since respondents 2-4
are on anticipatory bail, investigation has been not proceeded E
in the right direction and that they are not cooperating with the
 investigation and the recovery of gun could not be effected so
far. Learned counsel submitted that, in any view, this is not a
 case where anticipatory bail could be granted. In support of his
contention, reference was made to the judgments of this Court.· F
 State Rep. by the CBI v. Anil Sharma (1997) 7 SCC 187,
 State of A.P. v. Bimal Krishna Kundu and Another (1997) 8
 SCC 104, Jai Prakash Singh v. State of Bihar and Another
 (2012) 4 SCC 379 and Rashmi Rekha Thatoi v. State of
 Orissa and Others (2012) 5 SCC 690.                               G

      8. Learned counsel appearing for respondents 2-4 referred
to some matrimonial disputes between Saleem (2nd
respondent) and cousin sister of the appellant and also to the
civil disputes pending between the parties. Further, it was also
                                                                       H
    1090    SUPREME COURT REPORTS                   [2013] 7 S.C.R.


A pointed out that the story put up by the complainant is incorrect
  and that the respondents have roots in the society and they are
  always willing to cooperate with the investigation. Further, it was
  also pointed out that the medical reports would show that the
  alleged injuries are of simple nature and no offence under
B Section 326 IPC has been made out. In support of his
  contention, reference was made to the judgment of this Court
  in Savitri AGarwal and Others v. State of Maharashtra and
  Another (2009) 8 SCC 325 and submitted that the learned
  Sessions Judge has rightly granted anticipatory bail, also
c affirmed by the High Court, warranting no interference by this
  Court.

      9. Shri Sidharth Luthra, learned Additional Solicitor
  General appearing for the State, submitted that, despite the
  order dated 16.7.2013 of this Court, all the four accused
D persons have failed to disclose the source of pistol which was
  used in the offence and are not co-operating in the
  investigation. He also pointed out that, on going through the
  records and evidence collected during the course of
  investigation, the police has added Section 307 IPC and
E Section 25 of the Arms Act. The State has, thus, supported the
  plea of the appellant for cancellation of the anticipatory bail.

          10. We have heard the counsel on either side at length and
    also perused the FIR as well as MLC No. B-2309/12 of G.T.B.
F   Hospital, wherein the injuries sustained have been recorded as
    follows:

        "(1} Multiple Small pellets wounds (+) over back of both
        lower limbs extending from back to mid thighs to back of
        legs each measuring about 2mm in diameter.
G
        (2) No external injury marks over back.

        (3) A pellet wound (+)over® middle finger.

        (4) No external neurovascular deficit."
H
         NASIRUDDIN v. STATE (NCT) DELHI                   1091
            [K.S. RADHAKRISHNAN, J.]

     11. On 26.5.2012, the Complainant Nasirruddin, after A
having discharged from the hospital, went to the Police Station
and made his statement under Section 161 CrPC. On the same
day, the Investigating Officer also recorded the statement of
Shamina, wife of the complainant as well as the statement of
Chandani, wife of Shehzaad. The statement of Chandani was B
got recorded under Section 164 CrPC on 29.5.12 in which she
narrated the role of all the accused, i.e. respondents 2-4. Above ·
mentioned statements would indicate that the accused Tasleem
told Azar and Noushad to apprehend appellant and Tasleem
fired at the appellant with a "country made pistol", which was      c
brought by Tasleem at the spot of the incident. On hearing the
cries and also the gunshot, the neighbours of the appellant
gathered near the spot and on seeing them, respondents 2-4
ran away from the spot.

      12. We are informed that none of the accused persons had      D
disclosed the source from which the weapon and bullets were
procured and that the Investigating Officer has pointed out that
the offence under Section 201 would be charged if the weapon
is not traced/recovered. Above facts would dearly indicate that
this is not a fit case for granting anticipatory bail, especially   E
when the investigation is not over and the weapon used in the
offence is yet to be traced. The medical report refers to the
gunshot injury on the body of the appellant. FIR was also found
promptly registered. The question as to whether the case will
fall under Section 326 IPC could be determined only after the       F
investigation is completed. Learned Additional Sessions
Judge, while granting anticipatory bail, opined that after having
considered the medical report, the ingredients of Section under
Section 326 IPC have not been satisfied. We are of the view
that it was too early for the learned Additional Sessions Judge     G
to express any opinion merely looking at the medical report.
 Medical report positively indicates of gunshot injury, may be
 simple, and it is due to that reason that the police has added
the offences under Section 307 IPC as well as Section 25 of
the Arms Act.                                                       H
    1092    SUPREME COURT REPORTS                 [20131 7 S.C.R.


A      13. Above being the factual situation, in our view, learned
  Additional Sessions Judge has committed an error in granting
  anticipatory bail to respondents 2-4, which was affirmed by the
  High Court. Consequently, the appeal is allowed and the order
  passed by the Additional Sessions Judge and the affirmation
B order passed by the High Court, are set aside. However,
  respondents 2-4, if so advised, may apply for regular bail before
  the trial court and the trial court may consider the same in
  accordance with law ..

    R.P.                                          Appeal allowed.