Research › Search › Judgment

J&K High Court · body

2003 DIGILAW 112 (JK)

Pt. Madan Lal Sharma v. Rakesh Kumar

2003-04-25

S.K.GUPTA

body2003
1. This revision has been preferred by the father of the deceased Anoop Kumar alias Pinta seeking setting aside/cancellation of bail order dated 1-11-2001 in respect of accused Rakesh Kumar and Anil Kumar, formulated by 2nd Additional Session Judge, Jammu, in case entitled State Versus Rakesh Kumar and Another, for offence under Sections 302/34 RPC. Facts of the case, the necessary narration of which in resume, may be noticed. The occurrence is stated to have taken placed on 30-1-1997 in which Anoop Kumar alias Pinta son of the petitioner was murdered by respondents-1 and 2 along with Romesh Chander, who is absconding. A case under Sections 302/34 RPC stood registered on the FIR lodged by the petitioner in this behalf in Police Station, R.S. Pura. On the conclusion of investigation, challan against all the three accused was presented before Munsiff, Judicial Magistrate, R.S. Pura who in turn committed the same to the Court of Sessions Judge, Jammu and subsequently stood transferred to 2nd Additional Sessions Judge, Jammu for trial. By order dated 14-11 -1998, respondents-1 and 2 were charged under Sections 302/34, whereas accused Romesh Chander was proceeded under Section 512 Cr.P.C. for having absconded for the commission of offence of murder. During the trial, statements of 11 out of a total 24 witnesses have been recorded. The evidence collected by the prosecution consisted of four eye-witnesses, namely, Madan Lal, petitioner, Sanjeev Kumar, Vipin Kumar and Nirmal Kanta, wife of the petitioner. Out of whom, statements of three witnesses have been recorded. The evidence of Nirmal Kanta is stated to have not been recorded on account of mental ailment because of her sons death. It appears that while the prosecution evidence was still to be completed, respondents applied for their release on bail. The 2nd Additional Sessions Judge, Jammu, passed order dated 1-11-2001 and allowed the application by admitting the accused to bail. The father of the deceased, whose statement as prosecution witness has been recorded, has assailed the legality and propriety of the order granting bail without assigning sound and justifiable reason at the time when the evidence of other material witnesses including the eye-witnesses is still to be recorded. It is further stated that the evidence provided by the witnesses, so far recorded including three eye-witnesses, have cogently implicated the respondents-accused and Romesh Chander, who is absconding in the murder of the son of the petitioner. It is further stated that the evidence provided by the witnesses, so far recorded including three eye-witnesses, have cogently implicated the respondents-accused and Romesh Chander, who is absconding in the murder of the son of the petitioner. That ever since the accused are released on bail, they are misusing the concession by intimidating the witnesses whose evidence is yet to be recorded. 2. Mr. C.M. Gupta, learned counsel appearing for the petitioner, has vehemently argued that the 2nd Additional Sessions Judge has arbitrarily exercised the discretion in granting bail, without application of mind and adverting to the evidence of the witnesses recorded during trial in proper perspective. Lastly, it was submitted that the manner in which the bail has been granted clearly smacks of impropriety and capriciousness of the Trial Court. 3. Mr. S. C. Gupta, learned counsel appearing for the respondents-1 and 2, however, contended that the Trial Court has exercised discretion in a judicious manner and granted bail to the accused. According to Mr. Gupta, respondents advocate, the accused were in custody for more than four years and the delay is not attributable to them. It is further stated by him that continued detention of accused in custody would impinge upon their constitutional right of life and liberty. Lastly, it was submitted that there is nothing brought on record by the prosecution that the accused have misused the concession either by tampering the evidence or warning the witnesses or otherwise violated the terms and conditions on which the concession of bail was allowed. 4. I have heard the arguments advanced by the learned counsel appearing for the respective parties, at length, and also gone through the relevant provision of law touching the matter in controversy. 5. On going through the impugned order passed by the Trial Court in granting bail to the petitioners therein, it is elicited that the grounds, which weighed with the Court for consideration, were that about 30 calendars were fixed for recording prosecution evidence in the case, but only 11/12 witnesses out of 24 witnesses were recorded within a period of more than four years and that the accused were in custody ever since 1st week of February, 1997 and in following the principles laid down in S. Ajid Singh Vs. State of J&K reported in 2000 KLJ 46. It is not disputed by Mr. State of J&K reported in 2000 KLJ 46. It is not disputed by Mr. C. M. Gupta, learned counsel appearing for the petitioner that out of a totality of 24 witnesses cited in the challan, prosecution has been able to produce and examine only 11 witnesses during the space of more than four years. It is also admitted that delay in the trial on account of non-production and non-examination of prosecution witnesses is not wholly attributable to the accused. In such a situation, it was for the prosecution to make out a case for reasonable and valid justification for not producing the prosecution witnesses with utmost promptitude and acknowledge fundamental right of the accused to have a speedy and expeditious trial so long it relates to their life and liberty. It is bounden duty of the prosecution to ensure that the trail is concluded without any unnecessary delay, as man dated by Article 21 of the Constitution of India. For delay in recording evidence, the prosecution may have many reasons, but it must made out a case for that purpose so as to oppose the grant of bail to the accused involved in a murder case, effectively. It is, however, not the situation in the present case. Perhaps this is the reason that the State has not come out with a revision against the order of the Trial Court seeking cancellation/ setting aside of the bail orders of the respondents. 6. It is well settled proposition of law that once the bail has been granted, it cannot be with drawn unless proved to have been abused and that is no longer conducive in large interest of the justice that the accused to remain on bail. The accused once released on bail, it can be cancelled only if it is found that the accused has tempered with the evidence by intimidating the prosecution witnesses with a view to thwart the course of justice. The concession can also be withdrawn if it is proved that the accused on account of his failure to appear in the Court at the time of trial has abused the process of the Court or he is indulging in the acts of violence to revenge against those, who have booked him in the case and the prosecution witnesses. The concession can also be withdrawn if it is proved that the accused on account of his failure to appear in the Court at the time of trial has abused the process of the Court or he is indulging in the acts of violence to revenge against those, who have booked him in the case and the prosecution witnesses. Before setting aside or withdrawal of the bail order, the Court must be satisfied on the basis of the material placed on record suggesting that the accused is either absconding or subverting the course of justice by threatening the witnesses or by any other reasons justifying the cancellation of the bail. It may further be pointed out that the bail so granted by the Trial Court in exercise of its discretion would not justify interference in a mechanical manner without satisfying the existence of grounds justifying the accused remaining at large not conducive either in the fair trail or in the interest of public at large. It is, however, apt to point out that no explanation is forthcoming from the learned Government Advocate in this case to justify delay in examining the witnesses, which unnecessary led to protracting the trial. In this backdrop, referring to the order impugned, it cannot be said, to suffer from any infirmity or legal impropriety inviting interference in revision. 7. In view of the aforesaid discussion, I do not find any merit in this revision. The same is accordingly dismissed.