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2001 DIGILAW 684 (PAT)

Parmand Kumar Singh v. State Of Bihar

2001-08-02

M.L.VISA

body2001
Judgment 1. This application by the petitioner has been filed for cancellation of bail granted to the opposite party no. 2 in B.P. No. 2105 of 2000, to opposite party nos. 3 & 4 in B. P. No. 2110 of 2000 on 28.11.2000 and to opposite party nos. 5, 6 and 7 in B.P. No. 1962 of 2000 on 19.10.2000, all granted by the learned Ist Additional Sessions Judge, Gaya, in connection with Khizersarai P.S. case no. 73 of 2000. 2. The brief facts giving rise to this application are that on the basis of the fardbeyan of the petitioner recorded on 18.7.2000, Khizersarai P.S case no. 73/2000 was registered by the police under sections 147, 148, 149, 302, 307, 326 of the Indian Penal Code and 27 of the Arms Act (Annexure -1). On 8.8.2000, an application for bail was filed before the learned Sessions Judge, Gaya, on behalf of co-accused Prahlad Singh and six others in which opposite party nos. 2 to 4 were also petitioners. This application was heard on 9.8.2000, when learned Sessions Judge, Gaya called for the case diary and the post mortem examination report. On 13.9.2000, case diary was produced by the learned P.P. but the petitioners of the bail application took time and the case was adjourned to 19.9.2000. On 19.9.2000, on the prayer of the petitioners of the bail application supervision note was called for and the case was adjourned to next date and when on 12.10.2000, the bail application was taken up it was again adjourned on the ground of non-availability of the counsel of the petitioners. The case was then adjourned and fixed on 4.11.2000. In the meantime, annual vacation ensured and on 19.10.2000 learned 1st Additional Sessions Judge, Gaya, who was holding court is vacation Judge granted bail to the opposite party nos. 5, 6 and 7 without summoning either the case diary, post mortem examination report or the supervision note. Thereafter, on 4.11.2000, when the bail application filed earlier by co-accused Prahalad Singh and six others including the opposite party nos. 2 to 4, was taken up before the learned Sessions Judge, Gaya, was withdrawn on behalf of the opposite party nos. 5, 6 and 7 without summoning either the case diary, post mortem examination report or the supervision note. Thereafter, on 4.11.2000, when the bail application filed earlier by co-accused Prahalad Singh and six others including the opposite party nos. 2 to 4, was taken up before the learned Sessions Judge, Gaya, was withdrawn on behalf of the opposite party nos. 2 to 4 by filing two seprate petitions for withdrawal (Annexure-5) and when again on 20.11.2001, learned Ist Additional Sessions Judge, Gaya, was the In-charge sessions Judge in absence of the learned sessions Judge, Gaya, the opposite party no. 2 filed bail petition which was numbered as B.P. No. 2105 of 2000 and the opposite party nos. 3 and 4 filed separate bail petition which was numbered as B.P. No. 2110 of 2000 and both the bail petitions were allowed on 28.11.2000 by the learned Ist Additional Sessions Judge, Gaya, although on that date the petitioner filed two separate petitions bringing it to the notice of the learned Ist Additional Sessions Judge, Gaya, that these petitioners had earlier filed bail petition no. 1329 of 2000 before the learned Sessions Judge, Gaya, but the same was withdrawn by him on 4.11.2000 and, therefore, it was desirable that their bail petitions should be heard by the learned Sessions Judge, Gaya (Annexure-7). 3. The case of the petitioner is that the learned Ist Additional Sessions Judge, Gaya, while granting bail to the opposite party nos. 2 to 7 ignored several important aspects of the matter including that the opposite party nos. 2 to 7 were armed with fire arms and they actively participated in the commission of offence in which two persons were killed and he passed the order granting bail to them in a haste without calling for the case diary and post mortem examination report and all these facts show that it was a wrong exercise of discretion by the learned court below granting bail to opposite party nos. 2 to 7. The petitioner has further stated that there is all likelihood of tampering with the evidence by the opposite party nos. 2 to 7 during the course of trial. Prayer has been made for cancellation of bail granted to opposite party nos. 2 to 7 by the learned Ist Additional Sessions Judge, Gaya. 4. Opposite party nos. 2 to 7. The petitioner has further stated that there is all likelihood of tampering with the evidence by the opposite party nos. 2 to 7 during the course of trial. Prayer has been made for cancellation of bail granted to opposite party nos. 2 to 7 by the learned Ist Additional Sessions Judge, Gaya. 4. Opposite party nos. 2 to 7 have appeared and opposed the prayer of the petitioner for cancellation of their bail by filing two separate replies to the show cause notices issued to them, one on behalf of the opposite party nos. 2, 5, 6 and 7 and another on behalf of the opposite party nos. 3 and 4. Their case is that the court below after considering the fact that no overt act was alleged against the opposite party nos. 2 to 7 in the F.I.R. as well as case in the protest petition filed by the petitioner in court granted bail to them and the petitioner has not been able to make out any ground for cancellation of bail. They have prayed for dismissal of the present petition filed on behalf of the petitioner. 5. The main grievance of the petitioner is that the opposite party nos. 2 to 4 alongwith some other co-accused persons had filed B.P. No. 1329 of 2000 before the learned Sessions Judge in which case diary, post mortem examination report and supervision note etc. were called for and when all these documents were received they withdrew their application for bail on 4.11.2000 by fifing petitions and the meantime opposite party nos. 5, 6 & 7 obtained bail on 19.10.2000 from the court of Ist Additional Sessions Judge, Gaya, who on that date was holding court as vacation Judge during the annual vacation of the court and thereafter opposite party nos. 2 to 4 by filing another bail petition before the learned Ist Additional Sessions Judge, when he was incharge Sessions Judge, in absence of the learned Sessions Judge, Gaya, obtained bail on 26.11.2000. In para 8 of the present application it is stated that the opposite party nos. 2 to 4 were waiting for the moment when the learned Ist Additional Sessions Judge, Gaya, would become In-charge Sessions Judge, Gaya and they got this opportunity on 28.11.2000. It appears that the petitioner has tried to impute some motive in granting bail to opposite party nos. 2 to 4 were waiting for the moment when the learned Ist Additional Sessions Judge, Gaya, would become In-charge Sessions Judge, Gaya and they got this opportunity on 28.11.2000. It appears that the petitioner has tried to impute some motive in granting bail to opposite party nos. 2 to 7 by the learned Ist Additional Sessions Judge, Gaya. The apprehension of the petitioner appears to be without any basis because it is true that the opposite party nos. 2 to 4 had filed B.P. No. 1329/2000 which was pending before the learned Sessions Judge, Gaya, but during the pendency of this bail petition opposite party nos. 5, 6 and 7 were granted bail by the learned Ist Additional Sessions Judge, Gaya, on 19.10.2000 and thereafter opposite party nos. 2 to 4 withdrew their application from the court of the learned Sessions Judge, Gaya, on 4.11.2000, and thereafter they again moved before the Ist Additional Sessions Judge, Gaya, by filing fresh bail application. I do not find any illegality or irregularity in it. Opposite party nos. 5, 6 and 7 had not filed any bail application earlier before they moved their bail application in the Court of the learned Ist Additional Sessions Judge, Gaya, when he was holding court as vacation Judge and the accused is at liberty to withdraw his application for bail at any time and such withdrawal will not prevent him from filing fresh application for bail. About the merit of the case, I find that in the F.I.R. the allegation of firing at both the deceased and inflicting injuries by fire arms to other persons is specifically attributed to other co-accused persons and not against the opposite party nos. 2 to 7. The order by which these opposite parties have been granted bail by the court below further speaks that in the protest petition also no overt act has been alleged against these opposite parties and this fact has not been denied by the petitioner. Learned counsel for the petitioner has submitted that in the F.I.R. it is clearly stated that all the accused persons including opposite party nos. 2 to 7 started indiscriminate firing. Learned counsel for the petitioner has submitted that in the F.I.R. it is clearly stated that all the accused persons including opposite party nos. 2 to 7 started indiscriminate firing. It is true that in the F.I.R. it is stated that all the accused named in the F.I.R. started firing from their rifles and guns but immediately thereafter it is also mentioned that in order to kill Prahlad Singh, Jitendra Singh (not among opposite parties) started firing from their fire arms inflicting injures to Dilkeshwar and thereafter co-accused Prahlad Singh fired at Tej Narain Singh and thereafter other co-accused, namely, Ram Raj Singh, Santosh Kumar Singh, Anuj Singh, Arun Singh fired at the deceased Tej Narain Singh and inflicted injuries to Viveka Nand Singh, brother of the petitioner, So, I find that in the F.I.R. allegation of inflicting injuries to both the deceased and to the brother of the petitioner is against other co-accused persons and not against the opposite party nos. 2 to 7. The learned Ist Additional Sessions Judge, Gaya, after considering this aspect granted bail to the opposite party nos. 2 to 7. It is true that in his order he has stated that there was no recovery of fire arms from the possession of the opposite party nos, 2 to 7 but that is not the only ground for granting bail by him to the opposite party nos. 2 to 7 because he has clearly stated that neither in the F.I.R. nor in the protest petition there is any overt act alleged against the opposite party nos. 2 to 7. It is not a case in which bail is generally not granted by the court below. I, therefore, find nothing unusual in the orders of the learned Ist Additional Sessions Judge, Gaya, by which he has granted bail to the opposite party nos. 2 to 7. 6. Learned counsel appearing on behalf of the petitioner has relied upon a decision in the case of State through Deputy Commissioner of Police, Special Branch, Delhi V/s. Jaspal Singh (1984) 3 SCC 555 but then I find that the facts of that case were quite different from the facts of the present case because in that case application of a co-accused was dismissed earlier by the same Bench of the High Court. Similarly, the decision in the case of State V/s. Captain Jagjit Singh ( AIR 1962 SC 253 ) is also not applicable to the facts of the present case because in that case it was held that in granting bail in a non-bailable offence nature of offence has to be considered and if the offence is of a kind in which bail should not be granted considering its seriousness the refused bail should be refused. Other decisions relied upon by the learned counsel for the petitioners are the decisions in the case of Sagir Ahmad V/s. State of Bihar (1986 PLJR 548) and Supdt. of Police V/s. P.B. Vijaya Raghwan and ors. (1984 Cri. L.J. NOC 111). These decisions are also not applicable to the facts of the present case because in these decisions bail granted on non- existent and irrelevant grounds without considering the relevant materials has not been held proper. In the present case, as discussed above, I find that the bail to opposite party nos. 2 to 7 have been granted considering the allegations stated in the F.I.R. as well as in the protest petition and finding no allegation of any overt act against the opposite party nos. 2 to 7 they have been granted bail. 7. The petitioner in this application has not come up with any allegation that after grant of bail to opposite party nos. 2 to 7, they are in any way misusing the privilege of bail and the petitioner in para 14 has simply stated that there is all likelihood of tampering with the evidence by opposite party nos. 2 to 7 during the course of trial but the petitioner has not stated any ground of his apprehension. 8. I, therefore, find no merit in this application of the petitioner and, accordingly, it is dismissed.