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2006 DIGILAW 1024 (PNJ)

Om Parkash v. State Of Haryana

2006-03-10

NIRMAL YADAV

body2006
Judgment Nirmal Yadav, J. 1. In this petition filed under Section 439(2) of the Code of Civil Procedure, the petitioner has prayed for setting aside the order of Additional Sessions Judge, Panipat dated 7.7.2005 (Annexure P-1) whereby accused Jai Bhagwan has been granted the concession of regular bail in case FIR No. 68 dated 25.3.2004, under Section 302 IPC read with Section 25 of the Arms Act, registered at Police Station GRPS Karnal and for taking him into custody. 2. Briefly stated, the facts of the case are that on 25.3.2004 Om Parkash, petitioner made a statement before the police that Naresh Kumar, since deceased, was his real nephew who was alleged to have enticed away daughter of one Suresh, resident of Azad Nagar, Panipat. After that, Naresh Kumar sold his house and started living in village Brass. He, however, kept meeting Rajesh, daughter of said Suresh, stealthily. Jai Bhagwan had extended warning to Naresh Kumar through Om Parkash that he should stop meeting Rajesh, otherwise, he would have to face dire consequences. On 25.3.2004 at about 4.30/5.00 A.M., Om Parkash opened his STD booth and was present in the street. He saw that Jai Bhagwan was coming from the side of park dragging Naresh Kumar from his legs. He kept the dead body in front of old house of Naresh and proclaimed that he had committed the murder of Naresh. When people started assembling there, Jai Bhagwan fled away from the spot. On the statement of Om Parkash, the FIR was registered on 25.3.2004 and investigation was conducted. Subsequently, vide impugned order dated 7.7.2005, accused Jai Bhagwan was released on bail. Aggrieved against the said order, the petitioner has filed the present petition for cancellation of bail. 3. I have heard learned counsel for the parties and perused the material on record. 4. Learned counsel for the petitioner argued that accused Jai Bhagwan has been released on bail mainly on two grounds, - firstly, Ram Ratti has been given up by the prosecution, having been won over; and secondly, the trial is not likely to be concluded in the near future as complaint filed by mother of the deceased is pending and accused is in custody since March, 2004. Learned counsel argued that while granting bail, the Court has to keep in view not only the nature of the accusation but the severity of punishment. Learned counsel argued that while granting bail, the Court has to keep in view not only the nature of the accusation but the severity of punishment. It has also to be borne in mind, if there is any reasonable apprehension of the evidence being tampered with or apprehension of there being a threat for the complainant. It is argued that in the event of heinous crime having been committed, the society needs protection from the elements who breach the peace and tranquillity of the society and rather capable of spreading a reign of terror. Learned counsel further argued that in the present case, the petitioner has submitted a complaint to the Superintendent of Police, Ambala vide Annexure P-5 seeking protection and has also filed an application (Annexure P-3) before the trial Court for providing protection to the prosecution witnesses. In the application dated 23.2.2005, Annexure P-3, moved before the Court it was categorically stated that accused are bound to cause harm to the applicant-petitioner and other witnesses and therefore, request was made that Superintendent of Police, Panipat be directed to make proper arrangement for protection of applicant and other witnesses. It was also mentioned in the said application that one such application had already been filed by Rajni Devi, mother of deceased Naresh, who has also filed a criminal complaint and the same is pending for recording evidence of the witnesses and the witnesses apprehend danger to their life. The said application was moved on 23.2.2005. However, the Court of Addl. Sessions Judge has not considered the facts mentioned in the application and granted bail to accused Jai Bhagwan vide order dated 7.7.2005. 5. On the other hand, in the reply filed on behalf of State by way of affidavit of Inspector-Ram Murti, Station House Officer, Police Station GRP Karnal, it is stated that complainant has filed a private complaint involving 4 other persons besides Jai Bhagwan, and the said case is yet to be committed to the Court of Sessions Judge, Panipat. It is further stated that no complaint was received with regard to extending threat to the petitioner. 6. It is true that liberty of individuals is precious and Courts must make an effort to protect the liberty of individuals. However, protection cannot be given at the cost of liberty and life of other persons. It is further stated that no complaint was received with regard to extending threat to the petitioner. 6. It is true that liberty of individuals is precious and Courts must make an effort to protect the liberty of individuals. However, protection cannot be given at the cost of liberty and life of other persons. It can only be made available to the deserving individual(s) depending upon exigencies of situation. The protection can only be allowed upon proper circumspection depending upon the factual situation of the matter. The Apex Court in the case of Shahzad Hasan Khan v. Ishtiaq Hasan Khan and another, 1987(2) SCC 684, has observed as under:- "Had the learned Judge granted time to the complainant for filing counter affidavit, correct facts would have been placed before the Court and it could have been pointed out that apart from the inherent danger of tampering with or intimidating witnesses and aborting the (sic) the main witnesses or to the life of the accused being endangered as experience of life has shown to the members of the profession and the judiciary, and in that event, the learned Judge would have been in a better position to ascertain facts to act judiciously. No doubt liberty of a citizen must be zealously safeguarded by court, nonetheless when a person is accused of a serious offence like murder and his successive bail applications are rejected on merit there being prima facie material, the prosecution is entitled to place correct facts before the court. Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution. Learned Judge was unduly influenced by the concept of liberty, disregarding the facts of the case." 7. Grant of bail, though, is a matter of discretion, however, it calls for exercise of discretion in a judicious manner and not as a matter of routine. The nature of offence is one of the basic considerations for the grant of bail. More herinous a crime greater is chance of rejection of a bail. Grant of bail, though, is a matter of discretion, however, it calls for exercise of discretion in a judicious manner and not as a matter of routine. The nature of offence is one of the basic considerations for the grant of bail. More herinous a crime greater is chance of rejection of a bail. Undoubtedly, the consideration applicable for cancellation of an order granting bail is quite independent and does not overlap with the consideration applicable for grant of bail. For cancellation of bail, availability of overlapping consideration is necessary, but the basic criteria, however, would be interference or an attempt to interfere in the administration of justice or abuse of privileges granted to the accused. In the present case, basically two considerations have weighed with the trial Court while granting bail to the accused, one is, pendency of private complaint and the other is winning over of Ram Ratti who is alleged to have seen the accused person firing shots at the deceased and thereby she having been given up by the prosecution. On a close scrutiny of chain of circumstances of the instant case both these considerations would rather go against the accused in the matter of grant of bail. Learned counsel for the petitioner has also placed on record a copy of the summoning order dated 12.11.2005 vide which accused Jai Bhagwan and four others have been summoned to face trial under Section 302/120-B IPC and 25/27/54/59 of the Arms Act along with Section 149 IPC. Moreover, application (Annexure P-3) had already been moved before the trial Court on 23.2.2005 for giving protection to the prosecution witnesses. Apart from that the complainant has also submitted an application/representation before the Superintendent of Police, GRPS Railway Station, Ambala Cantt. stating that accused are threatening the complainant and other witnesses and therefore, request has been made for protecting their life and liberty from the accused persons. 8. In view of the above the impugned order dated 7.7.2005 granting bail to accused Jai Bhagwan is set aside and it is directed that the accused be taken into custody forthwith. Order accordingly.