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2002 DIGILAW 564 (PAT)

Santosh Kumar v. State Of Bihar

2002-05-01

M.L.VISA

body2002
Judgment 1. This is an application for cancellation of bail of opposite parties No. 2 to 4 granted by Chief Judicial Magistrate, Ara by his order dated 5.12.2000 in Koilwar Police Station Case No. 138 of 2000 initially registered under sections 341, 323, 324 and 504 read with section 34, Indian Penal Code but subsequently added with Section 307, Indian Penal Code. 2. Petitioner is informant of Koilwar Police Station Case No. 138 of 2000. In his fardbeyan recorded on 3.11.2000, the petitioner stated that on 3.11.2000 at about 5 p.m. when he was standing near a Gumti, opposite party No. 2 came there and started abusing him and thereafter opposite party No. 3, armed with a fasuli and opposite party No. 4, armed with a katta (country made pistol), came there and they also abused the petitioner and, thereafter, at the order of opposite party No. 4, opposite party No. 3 inflicted injury with fasuli on the left side of head of petitioner and when he again wanted to give another blow with fasuli, the informant warded it off with his hand as a result of which he received fasuli injury on his hand and after it, opposite party No. 4, who was armed with katta, chased petitioner by abusing him. On the basis of fardbeyan of informant, Koilwar Police Station Case No. 138 of 2000 under sections 323/324/504 read with Section 34, Indian Penal Code, was registered. 3. The brother of petitioner made attempts to meet Superintendent of Police on the next day with his fresh petition for adding Section 307, Indian Penal Code and Section 27, Arms Act to the first information report but he could not meet him and on 9.1.2000, petitioner filed a protest petition (Annexure-2) before the Court of Chief Judicial Magistrate for adding Section 304, Indian Penal Code and 27, Arms Act on 9.11.2000 and on 11.11.2000, Superintendent of Police; Ara directed Koilwar police for adding Section 307, Indian Penal Code which was added to first information report (Annexure-3). 4. The case of petitioner is that opposite parties No. 2 to 4 surrendered before the Court of Chief Judicial Magistrate, Ara and prayed for bail suppressing material facts and it was placed before Chief Judicial Magistrate, Ara that a case under Sections 323/324/341/504/34, Indian Penal Code had been instituted. 4. The case of petitioner is that opposite parties No. 2 to 4 surrendered before the Court of Chief Judicial Magistrate, Ara and prayed for bail suppressing material facts and it was placed before Chief Judicial Magistrate, Ara that a case under Sections 323/324/341/504/34, Indian Penal Code had been instituted. According to the petitioner, the learned Chief Judicial Magistrate, without perusing first information report and protest petition and without calling for case diary, granted bail to opposite parties No. 2 to 4. Further case of petitioner is that the allegations made in first information report and materials collected during the course of investigation, disclose that opposite parties No. 2 to 4 have committed offence and police submitted chargesheet under Section 307 and other allied sections of Indian Penal Code and opposite parties No. 2 to 4 are misusing the privilege of bail because they are giving threatening to petitioner for compromising the case and a proceeding under Section 107, Code of Criminal Procedure has already been initiated against them on the basis of police report. Petitioner has prayed for cancellation of bail of opposite parties No. 2 to 4 granted by learned Chief Judicial Magistrate, Ara. 5. Opposite parties No. 2 to 4 have appeared and opposed the prayer for cancellation of their bail and filed a counter-affidavit stating therein that petitioner is a private party and he has got no locus standi to pray for cancellation of bail granted to them in this case which is State case and State has not marie any such prayer. They have denied the allegation of petitioner that they are terrorising the petitioner. According to opposite parties No. 2 to 4, petitioner has not made out any case for cancellation of their bail. They have prayed for rejecting the prayer of petitioner. 6. It appears that petitioner had filed a petition for cancellation of bail granted to opposite parties no. 2 to 4 before Sessions Judge, Ara who, after considering the materials on record, rejected the prayer of petitioner and therefore, the petitioner has now come before this Court. In para-10 of application, the petitioner has stated that opposite parties No. 2 to 4 prayed for bail before Court of Chief Judicial Magistrate suppressing the material facts and on the whole, the case was placed before Chief Judicial Magistrate as a case registered under Sections 323/324/341/504/34, Indian Penal Code. In para-10 of application, the petitioner has stated that opposite parties No. 2 to 4 prayed for bail before Court of Chief Judicial Magistrate suppressing the material facts and on the whole, the case was placed before Chief Judicial Magistrate as a case registered under Sections 323/324/341/504/34, Indian Penal Code. This submission on behalf of petitioner is not correct which is apparent from the order of Chief Judicial Magistrate granting bail to opposite parties No. 2 to 4 because in this order, he has clearly stated that initially the case was registered under Sections 341/323/324/504/34, Indian Penal Code but later on Section 307, Indian Penal Code was also got added by police. It also considered the fact that Investigating Officer, in his forwarding report for adding Section 307, Indian Penal Code to first information report, had stated that the Superintendent of Police nad directed him for adding Section 307, Indian Penal Code to the first information report and in his forwarding report, the Investigating Officer had not given any cogent evidence for addition of Section 307, Indian Penal Code to the first information report. Taking into consideration these materials as well as submissions made on behalf of opposite parties that they all are college going students and also considering the fact that there was no allegation of assault against opposite parties No. 2 and 4, it granted bail to opposite parties No. 2 and 4. So far allegation of petitioner that opposite parites No. 2 to 4 are misusing the privilege of bail, I find that only a vague and general statement has been made in the application that opposite parties No. 2 to 4 are misusing the privilege of bail by terrorising the petitioner to compromise the case. It is true that petitioner, in para-19 of his application, has stated that a proceeding under Section 107, Code of Criminal Procedure has been initiated against opposite parties No. 2 to 4 on the report of Assistant Sub-Inspector, Koilwar Police Station but then this point was considered by the Sessions Judge, Ara who has observed that this proceeding has been initiated against both the parties and mere initiation of such a proceeding will not mean that opposite parties No. 2 to 4 are misusing the privilege of bail. 7. 7. So far the decisions in the case of Gurcharan Singh and others V/s. State (Delhi Administration), reported in (1978) 2 SCR 358 and in the case of State of Maharashtra V/s. Walchand Hiralal Shaha and another, reported in 1996 CRI. L.J. 1102 which have been relied upon by the learned counsel for the petitioner are concerned, I find that these are not applicable to the facts of the present case because in the case reported in 1996 CRI. L.J. 1102 (supra), testimony of injured eye witnesses was corroborated by medical evidence and besides this accused have made a false statement in affidavit that no application for bail was pending in any Court and in that view of the matter, their bail was cancelled but in the present case I find that the learned Sessions Judge has observed that the allegation of petitioner made in first information that he received only two injuries by fasuli is not supported by medical evidence according to which four incised injuries were found on the person of petitioner. In the case reported in (1978) 2 SCR 358 (supra), after considering all relevant materials including the fact that the appellants accused were police officers and they were granted bail by Sessions Judge but their bail was cancelled by High Court and when the appellants moved the Apex Court, it refused to interfere with the order of High Court by observing that "in the peculiar nature of case levelled on the allegations and the positions of the appellants in relation to eye witnesses, it was incumbent upon the Sessions Judge to give proper weight to the serious apprehension of the prosecution with regard to tempering with the eye witnesses, which was urged before him in deciding the application for bail. The matter would have been different if there was absolutely no basis for the apprehension of the prosecution with regard to tampering of eye witnesses and the allegations rested only on a bald statement." In this case, it was further observed that "the facts and circumstance of each case will govern the exercise of judicial discretion in granting or rejecting bail." 8. From materials on record, I find that the petitioner has not been able to make out any case for cancellation of bail of opposite parties No. 2 to 4. I, therefore, find no merit in this application which is, accordingly, dismissed.