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1999 DIGILAW 129 (RAJ)

Yusuf Khan v. State of Rajasthan

1999-02-03

B.J.SHETHNA

body1999
Honble SHETHNA, J.–On two grounds, the bail is sought from this Court by the present accused petitioner in his third bail application i.e. (1) after the first prosecution witness was examined on 2.12.98, rest of the prosecution witnesses examined before the trial court namely (i) Gurditta Singh on 5.1.99, (ii) Manga on 5.1.99 and (iii) Surendra Pal Singh on 16.1.99, have turned hostile and not supported the prosecution; and (2) that the co-accused Sakhi Mohd. is granted bail in S.B. Cr. Bail Application No. 3355/98 by this Court (S.C. Mital J.) on 10.12.98, whose case is similar to the case of the present accused. (2). Before dealing with the same, I may state that the first bail application of the present accused petitioner Yusuf Khan was dismissed as not pressed on 7.10.98 by me. Thereafter, with the change in roster, co-accused Sakhi Mohd. filed S.B. Cr.Bail Application No. 3355/98 through the same advocate, which came up before my brother Judge (S.C.Mital J.) on 10.12.98. In that matter, same Public Prosecutor Shri S.K. Vyas, who appeared before me in case of the present accused, appeared and this Court (S.C. Mital J.) granted bail to co-accused Sakhi Mohd. However, from the order passed in the bail application of Sakhi Mohd., nowhere it appears that the fact of rejecting bail application of his co-accused Yusuf Khan, whose case is identical to accused Sakhi Mohd, was brought to the notice of my brother Judge or not. (3). I may also state that the present accused Yusuf Khan had already filed his second bail application bearing No.3191/98 before this Court on 6.11.98. The same came up before me on 9.11.98 and it was ordered to be listed on 12.11.98 as prayed for by learned counsel Mr. Garg. Thereafter, it was adjourned from time to time on 19.11.98, 27.11.98 and 4.12.98 at the request of Mr.Garg. On 4.12.98, it was ordered to be put up on 15.12.98. On that day i.e. 15.12.98, the second contention, which is raised today before me by the learned counsel Mr. Singhal, who is now appearing for the present accused, was argued by the learned counsel Mr. Garg and at that time, on the basis of the bail order passed by my brother Judge (S.C. Mital J.) in S.B. Cr. Bail Application No.3355/98 filed by co-accused Sakhi Mohd. bail was prayed for. (4). Singhal, who is now appearing for the present accused, was argued by the learned counsel Mr. Garg and at that time, on the basis of the bail order passed by my brother Judge (S.C. Mital J.) in S.B. Cr. Bail Application No.3355/98 filed by co-accused Sakhi Mohd. bail was prayed for. (4). Looking to the seriousness of the matter, I was inclined to cancel the bail order obtained by co-accused Sakhi Mohd. while rejecting the second bail application filed by the present accused, as I apprehended that if he (Sakhi Mohd.) remains on bail, then he may temper with the evidence of the prosecution witnesses. At that time, a request was made by Mr. Garg before me to permit him to withdraw the second bail application filed by him for the present accused petitioner Yusuf Khan and not to cancel the order passed in favour of accused Sakhi Mohd., therefore, I granted him permission to withdraw the second bail application of the present accused-petitioner and not cancelled the bail granted to co-accused Sakhi Mohd. (5). But, once again the present accused petitioner has now filed this third bail application wherein it has been mentioned that as many as four witnesses including important witnesses Gurditta Singh and other witnesses have been examined between 5.1.99 to 16.1.99 and all of them have turned hostile and not supported the prosecution. It has proved the earlier apprehension of the court that if Sakhi Moh- mad remains on bail, he will definitely temper with the evidence of the prosecution witnesses. (6). In view of the above, there is no question of granting this third bail application of present accused petitioner Yusuf Khan and accordingly, it is rejected. (7). Considering the seriousness of the matter, the bail granted on 10.12.98 to co-accused Sakhi Mohd. son of Rahmat Ali is required to be cancelled forthwith by exercising my suo moto jurisdiction. (8). Accordingly, the office is directed to register a separate misc. application titled as ``State of Rajasthan vs. Sakhi Mohd S/o Rahmat Ali. And, accordingly, bail granted by this Court to co-accused Sakhi Mohd. on 10.12.98 in S.B. Cr. Bail Application No.3355/98 is cancelled forthwith. Learned A.P.P. Mr. Upadhyaya, who is present before the court, is directed to inform about this order immediately to the Investigating Officer and see to it that co-accused Sakhi Mohd is arrested and taken into custody, forthwith. And, accordingly, bail granted by this Court to co-accused Sakhi Mohd. on 10.12.98 in S.B. Cr. Bail Application No.3355/98 is cancelled forthwith. Learned A.P.P. Mr. Upadhyaya, who is present before the court, is directed to inform about this order immediately to the Investigating Officer and see to it that co-accused Sakhi Mohd is arrested and taken into custody, forthwith. After he is arrested, it will be open to accused Sakhi Mohd. to move this court for appropriate order including the order of releasing him on bail. (9). It also appears that if the trial is allowed to be proceeded before the trial court then remaining witnesses may also turn hostile and they may not support the prosecution. Hence, the learned trial Judge i.e. A.C.J.M., Sri Ganganagar, who is trying the case No. 272/98 ``State vs. Sakhi Mohd. & Ors., is directed not to proceed further with the trial till co-accused Sakhi Mohd. is arrested. The trial Judge shall proceed only after further orders passed by this Court in this matter. The office shall intimate about this order to the trial Court, forthwith. A copy of this order be also given to the learned A.P.P Mr. Upadhyaya for taking immediate steps in the matter.