Ram Kishore v. State Of U. P. — 1991 DIGILAW 823 (ALL)

JUDGMENT B. P. Singh, J. 1. Both these applications are being disposed of by one order as they relate to the same crime i.e. Crime No. 14 of 1991 (State v. Ayodhya and others), under Sections 302/307, IPC. 2. A First Information Report was lodged by Lalla Singh on 17-1-1991 at 9-10 p. m. in Police Station Malawan, District Fatehpur alleging that Chunnoo Singh, Chandra Pal and Ram Kishore had fired upon Kamta Singh and Sikander from their licensed gun, as a result of which Kamta Singh died on the spot and Sikander got a bullet injury upon his shoulder. Chunnoo Singh is the applicant in application No. 5264 while Ram Kishore and Chandra Pal are the applicants in application No. 5263 of 1991. I have heard at length Sri V. C. Tiwari for the applicants, Sri Amar Saran for the complainant and the learned Additional Government Advocate. The applications have been opposed on the main ground that it is a day light murder in which a person was brutally gunned down and the other one just escaped with a gun shot wound. On the other hand the contentions of the learned counsel for the applicants are that the applicants have been falsely implicated in the case out of enmity and there were circumstances special to the case which created great doubt about the presence of the first informant upon the scene of occurrence. 3. One of the fundamental principles of legal jurisprudence is that a man accused of an offence is proved to be innocent unless the contrary is proved and for this reason the concept of pre-trial punishment is foreign to our legal system. But the framers of the Code of Criminal Procedure (herein after referred to as the Code for the sake of gravity) provided for pre-trial detention of a person accused of an offence when they divided the offence in two categories i.e. bailable and non-bailable. A person accused of having committed a bailable offence has a right to be released during the course of enquiry/trial if he is willing and prepared to offer bail. However, no such right is available to a person accused of a non- bailable offence. Sections 437 and 439 of the Code deal with the grant of bail in non-bailable offences. A person accused of having committed a bailable offence has a right to be released during the course of enquiry/trial if he is willing and prepared to offer bail. However, no such right is available to a person accused of a non- bailable offence. Sections 437 and 439 of the Code deal with the grant of bail in non-bailable offences. Section 437 of the Code provides for the cases where an officer/court (other than High Court or Court of Sessions) may grant bail to a person accused of non-bailable offence. Section 439 of the Code confers special powers upon the High Court/court of Sessions to grant bail in criminal cases. Section 439 (1) (a) of the Code provides that a High Court or Court of Sessions may direct that any person accused of an offence and in custody be released on bail and if the offence is of the nature specified in sub-section (3) of Section 437 of the Code, may impose any condition which it considers necessary for the purposes mentioned in that sub-section. Thus the powers of the High Court/court of Sessions to grant bail of an accused person are unfettered. 4. The Supreme Court in the case of Bhagirath Singh Judeia v State of Gujarat, AIR 1984 SC 372 has observed as follows :- "but even where a prima facie case is established the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. " The powers of the High Court/court of Sessions under Section 439 of the Code were also considered by the Supreme Court in the case of Gurcharan Singh and others v. State (Delhi Administration), AIR 1978 SC 179 . In the said case the Supreme Court has observed as follow : "the overriding consideration in granting bail to which we adverted to earlier and which are common both in the case of Section 437 (1) and Section 439 (1), Cr. In the said case the Supreme Court has observed as follow : "the overriding consideration in granting bail to which we adverted to earlier and which are common both in the case of Section 437 (1) and Section 439 (1), Cr. P. C. and the new Code or the nature and gravity of the circumstances in which the offence is committed the position and the status of the accused with reference to the victim and the witnesses ; the likelihood of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses ; the history of the case as well as of its investigation and other relevant grounds which in view of so many variable factors, cannot be exaustively set out. " The Supreme Court further observes as follows :- "we may repeat the two paramount considerations, viz. likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair trial of the case in a court of, justice. It is essential that due and proper weight should bestowed on these two factors apart from others. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail." On a perusal of the above cited decisions it would appear that emphasis has been laid down two factors. Firstly whether there was likelihood of the accused fleeing from justice and secondly, whether there was a chance of the accused tampering with the evidence. Of course, the gravity of the offence and the special circumstances, which may be available in the case, are also be considered. 5. In the present case it is not the case of the State that the accused are likely to abscond or there is likelihood of tampering with the evidence of the prosecution. The case of the prosecution in the FIR is that the first informant alongwith Sajjan and Pratap Singh had gone to receive Kara ta Singh and Sikander upon the bus stand and that when Kamta Singtt and Sikander had stopped down from the bus, they had started by bicyle towards the village. The case of the prosecution in the FIR is that the first informant alongwith Sajjan and Pratap Singh had gone to receive Kara ta Singh and Sikander upon the bus stand and that when Kamta Singtt and Sikander had stopped down from the bus, they had started by bicyle towards the village. The argument of the learned counsel for the applicants is that if this assertion is to be accepted as correct, the first informant and the witnesses of fact had also left the bus stand alongwith Kamta Singh and Sikander. But the site plan filed before me shows that the I. O. has indicated in the site plan that the first informant and the witnesses of fact had reached on the scene of occurrence from the side of village which was opposite to the direction from which Kamta Singh and Sikander had reached upon the scene of occurrence. It was also contended that one of the witnesses of fact, Sajjan, has filed affidavit in the court disowning to have witnessed any such occurrence. At this stage it is not possible to make any comment upon these submissions because these submissions can be examined in detail only when the evidence for the prosecution had been led in the case and the witnesses have been cross-examined by the accused. However, I am of the view that a case for bail is made out under these circumstances. 6. It is made clear that the observation made above regarding FIR and the site plan will not have any bearing, whatsoever, upon the trial court when the case is taken for hearing. Let the applicants, Ram Kishore, Chandra Pal and Chunnu Singh involved in Crime No, 14 of 1991, under Sections 302/307, IPC, P. S. Mala-wan, District Fatehpur, be released on bail provided they each furnish a personal bond and two sureties to the satisfaction of Chief Judicial Magistrate, Fatehpur. Application allowed.