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2004 DIGILAW 159 (JK)

Balwan Singh v. State Of J. &K.

2004-05-21

S.K.GUPTA

body2004
By means of this application, Balwan Singh, accused, standing trial for the commission of offences under Sections 302/307/109/34 RPC has sought his release on bail solely on the ground that the role attributed against the accused, Balwan Singh, is that he made oral exhortation along with Gandharb Singh accused, on which Dev Raj, accused, PSO provided for the protection of Gandharb Singh, accused, started firing with AK-47 Rifle and killed Pardeep Kumar and Kamal Raj on spot and Sanjeev Kumar was fortunate enough to escape with injuries alone. It is further stated that two persons, accused Gandharb Singh and Balwan Singh, exhorted a `Lalkara at the same time, attributing it to Balwan Singh would be of no effect on PSO, who, in fact, was provided to accused Gandharb Singh for protection. The PSO had to protect Gandharb Singh legitimately, and was expected to have acted under his instructions alone and not Balwan Singh. It is also urged that if the allegations of oral exhortation made by Balwan Singh are taken out of the prosecution case, the only allegation against him remains that he inflicted injuries on Sanjeev Kumar with the butt of 12-bore gun snatched from Mr. Gandharb Singh. In such situation, it cannot be suggested, even with a figment of imagination, that Balwan Singh, petitioner/accused had shared the intention to kill the deceased with Gandharb Singh, accused. In controverting the contention of the petitioner, Mr. B.S. Salathia, learned Additional Advocate General, in his reply submitted that the petitioner is facing a trial in a murder case along with other accused, which is pending at the stage of recording prosecution evidence. His further contention is that the earlier bail application, commenced by the petitioner, had been rejected by the Trial Court for want of valid reasons. He also submitted that in case the petitioner is released on bail, in all likelihood, it would hamper the progress of the trial and tamper the evidence, yet to be recorded in the case. I have heard the learned counsel appearing for the respective parties and also considered their rival contentions. He also submitted that in case the petitioner is released on bail, in all likelihood, it would hamper the progress of the trial and tamper the evidence, yet to be recorded in the case. I have heard the learned counsel appearing for the respective parties and also considered their rival contentions. It may be pointed out at the threshold that the petitioner is facing trial in a murder case and section 497 (1) puts restrictions/embargo on the powers of the Court to grant bail in case of offences punishable with death penalty or imprisonment for life, unless squarely falls within the ambit of exception clause. That apart, the considerations, which normally weigh with the court in granting bail in non-bailable offences, are the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of the witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. Further, the discretionary jurisdiction of the Court should be exercised carefully and cautiously by balancing rights of the accused and interest of society. To refuse bail, it is not necessary that there should be evidence, which would practically justify a conviction. The accused is not entitled to be released if there appear reasonable grounds for believing that he has been guilty of an offence of the specified kind. The gravity of the offences involved in case of petitioner is likely to induce him to avoid the course of justice, and must weigh with the Court when considering the question of bail. The nature of the charge is a vital factor and the nature of the evidence is also pertinent. The punishment to which the party is liable, if convicted or conviction is confirmed, also bears upon the issues. The main plank of the petitioners contention is that absence of pre-concert with Gandharb Singh to kill the deceased itself constitutes a sufficient ground for the grant of bail to the petitioner. He further buttressed his argument in submitting that Dev Raj, PSO, was provided to Gandharb Singh for his protection and in normal course, he would have acted on his instructions, viz., `Lalkara, an oral exhortation, and not of Balwan Singh. He further buttressed his argument in submitting that Dev Raj, PSO, was provided to Gandharb Singh for his protection and in normal course, he would have acted on his instructions, viz., `Lalkara, an oral exhortation, and not of Balwan Singh. This, according to Mr. Goni, itself is sufficient to show that there was no pre-concert and the firing was at the spur of a moment. Allegations against the petitioner in the challan emanated from the record is that Balwan Singh imbibed grudge against the deceased (Pardeep Kumar and Kamal Raj) and Sanjeev Kumar, with regard to the allotment of a counter at the Bus Stand and PSO, Dev Raj, acting on his command, fired from his AK-47 Rifle causing death of Pardeep Kumar and Kamal Raj on spot, viz., in the Office of the Jammu Development Authority. Further allegations against the petitioner is that, thereafter, he took the Rifle 12-bore gun from Gandharb Singh and resorted to firing on Sanjeev Kumar and, thereafter, accused threw him from window, resulting in multiple fractures. A charge has been framed against the accused by the Trial Court after having found a prima facie case carved out under sections 302/307/109/34 RPC. The prosecution has not yet concluded the evidence in support of the charge and still some material witnesses remain to be examined. It would not be in the interest of justice to touch the merit of the case in dilating upon the grounds urged and submissions made by Mr. Goni during the course of arguments for the enlargement of the petitioner on bail, at this stage. This is a matter, which can be gone into only after the evidence is led and on its appreciation and estimation at a proper stage. Looking to the genesis of the occurrence and the attenuating circumstances, grounds taken in the application cannot be considered for the release of the accused on bail, as still evidence of the prosecution is being recorded. In the facts and circumstances of the case, taken in its cumulative, I do not find good and sufficient grounds for the release of the petitioner on bail. The Bail Application possessing no merit is dismissed.