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2008 DIGILAW 422 (JK)

Gandarb Singh v. State

2008-11-10

SUNIL HALI

body2008
1. After having failed to obtain bail from the learned Sessions Judge, Jammu, the petitioner-accused has filed fresh application in this court for seeking bail. It is contended in the application that he is facing trial under Sections 302, 307, 326, 109/34 RPC in a FIR No. 70/2001 of Police Station, Bahu Fort, Jammu. The trial court has rejected his prayer for grant of bail vide order dated 18.2.2008 and returned findings that petitioner-accused had already filed bail application, which came to be disposed of by the Sessions Judge, Jammu vide its order dated 21.10.2005. The trial court held that there is no change of circumstance/situation after rejection of the earlier bail on the same grounds. On the question of speedy trial, the court held that prosecution evidence has been closed on 4.5.2006 and thereafter defence has to lead the evidence and the conclusion of the trial depends upon the recording of defence evidence. It is also important to mention here that the petitioner had filed a bail application which was disposed on 2.5.2003. 2. I have heard the learned counsel for the parties and perused the record. 3. In order to appreciate the controversy involved in this bail application, the brief facts are required to be given. That on 24.4.2001 at about 11.30 A.M. Pardeep Kumar, deceased alongwith Kamal Raj and Sanjeev Kumar went to JDA complex to enquire about their case of allotment of KMD counter. They encountered the accused persons in the JDA office. It is alleged that there was dispute going on between Balwan Singh and Pardeep Kumar for allotment of counter at Bus Stand. It is alleged that accused Balwan Singh started abusing Pardeep Kumar. On being objected by Pardeep Kumar, Balwan Singh started beating him. Sanjeev Kumar and Kamal Raj tried to intervene. On the said intervention, Balwan Singh and petitioner exhorted accused no.3 who was PSO with Balwan Singh to kill Pardeep Kumar and Kamal Raj. On the exhortation, the accused no. 3-Dev Raj opened fire with his AK-47 rifle on Sanjeev Kumar, Pardeep Kumar and Kamal Raj, as a result of which, Pardeep Kumar and Kamal Raj succumbed to the injuries. Balwan Singh snatched the rifle from Gandarb Singh and started beating Sanjeev Kumar with the butt of gun. It is further alleged that both the accused threw him out on the ground through the window, breaking his both legs. Balwan Singh snatched the rifle from Gandarb Singh and started beating Sanjeev Kumar with the butt of gun. It is further alleged that both the accused threw him out on the ground through the window, breaking his both legs. The prosecution has already examined the witnesses including Sanjeev Kumar. 4. Mr. Raina, learned counsel for the petitioner states that statement of Sanjeev Kumar is pivotal in the case. He submits that there is no involvement of present accused in the case. He states that it was not a case of under Section 109/34 RPC. He further states that the only role played by the accused was that he exhorted the PSO to open fire on the deceased. According to him, the accused cannot be said to have committed any offence much less the offence under Sections 302, 307, 109/34 RPC. 5. On the other hand, Mr. Sethi, learned counsel for respondents states that there is no fresh event and cause for the accused to file present petition. His application was dismissed on 21.10.2005 and no new facts have emerged thereafter. He further states that powers of the court to grant bail under Section 302 RPC pending trial is to be done with great circumspect and sparingly. He further contends that the statement of prosecution has been closed in the year, 2006 and the delay is on account of non prosecution of witnesses by the defence. 6. The contention of Mr. Raina is that role of accused is required to be critically examined and evidence produced is to be appreciated in order to determine complicity of the accused under Section 302 RPC for purpose of grant of bail at this stage. There is no dispute with regard to this proposition of law. 7. In order to decide this bail application, it is important to look into the evidence, which has come on record. Grant of bail at this stage depends upon the involvement of the accused in the said offences, which are reflected from the statement of witnesses, who have been examined. It is also important that any observation made while appreciating the evidence will have direct affect on the outcome of the trial. However, it is not in dispute that court has power to grant bail during the pendency of the trial. It is also important that any observation made while appreciating the evidence will have direct affect on the outcome of the trial. However, it is not in dispute that court has power to grant bail during the pendency of the trial. The only question which requires to be examined by this court at this stage is that what is the evidence which has come against the accused? 8. After scanning through the evidence which has come on record more particularly the statement of Sanjeev Kumar-witness, I do not find at this stage that the petitioner is entitled to bail. 9. The accused can be granted bail only if evidence which come on record, overwhelmingly point towards non-involvement of the accused in the case. Where there are two views possible, the court must ordinarily refrain from exercising its powers under Section 498 Cr. P.C. while granting the bail in such cases. 10. Coming to the case in hand, I do not find the accused entitled to bail. Since his earlier application for grant of bail has been dismissed by the Sessions Judge, Jammu on 21.10.2005, there is no change in the situation. 11. It has also come on record that this case is now pending for recording evidence of defence. This delay cannot be attributed to the prosecution. The defence is required to expedite the examination of witnesses. It is, accordingly, directed that trial court shall conclude the defence witnesses within three hearings and then decide the matter within three months from the date the statements of defence witnesses is concluded. The trial court will be at liberty to record its findings after conclusion of the trial uninfluenced by any observation made by this court. 12. The parties through their counsel shall appear before the trial court on 22.11.2008. Record of the trial court be sent back.