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2010 DIGILAW 1342 (ALL)

Awadhesh Kumar Singh v. State Of U. P.

2010-04-26

Y.K.SANGAL

body2010
Hon'ble Yogendra Kumar Sangal,J. 1. This is an application to cancellation the bail granted to the respondent No. 2 Ashok Kumar Singh in case crime No. 28/2006 under Section 302 IPC, Police Station Kotwali, District Varanasi vide order dated 19.12.2006 by this Court in Bail Application No. 17577/2006. 2. A report was lodged by the applicant against the respondent No. 2 with the averments that on 28.03.2006 when he returned from his inlaws' house, he saw that his mother was lying dead in the house. Earlier hot words were exchanged between his brother Ashok Kumar Singh alias Bachhu respondent No. 2 and his wife Babi at one hand and his mother on other side. Several complaint in this regard were made to the police authorities. On this report a case was registered during investigation applicant was apprehended and he was released on bail as above. Charge-sheet was submitted. Case was committed to Session in ST No. 286/2006 State vs. Ashok Kumar Singh is going in the Court of 13 ASJ, District Varanasi. 3. As per applications case after release on bail continuously respondent No. 2 is threatening to the informant and witnesses so application was moved on 26.02.2007 to Superintendent of Police, Varanasi. Police has challenged accused respondent No. 2 under Section 151, 107, 116 CrPC. Notice was served to him under Section 111, 112 CrPC. Accused is misusing the liberty of bail granted, till he is on bail fair trial of the accused is not possible. He is tampering the evidence in the collusion of local police and there is every apprehension of life of the family members of the applicant and witnesses from the side of the accused. Copy of the application to Superintendent of Police, challenged report of police and copy of notice under Section 111, 112 CrPC were annexed with the application. 4. From the application submitted by the applicant to Superintendent of Police on 26.02.2007, it reveals that after releasing on bail on 24.02.2007 when accused came at the house, he had threatened to the informant at the house. Next day at about 1.00 P.M. accused along with his wife and two another persons again came at the house of the applicant, badly abused him and threatened him that he will kill him. He has also pressed either to compromise the matter or file affidavit in the court to withdraw the case. Next day at about 1.00 P.M. accused along with his wife and two another persons again came at the house of the applicant, badly abused him and threatened him that he will kill him. He has also pressed either to compromise the matter or file affidavit in the court to withdraw the case. Immediately, police was informed and police reached on the spot. They were apprehended and brought at police station. Under the pressure of Natas, Police has released him. Next date on 26.02.2007 again accused came at the house and tried to strangulate him. His wife had caught his heir. Witnesses saw this occurrence. He went to lodge the report but under the pressure of the local Natas, his report was not lodged. He has apprehension of his life and family persons life and he prayed for safety of his family. 5. By supplementary affidavit again applicant brought certain other facts before the court that witness of the case Rajesh Kumar Singh had moved application on 24.02.2007 to the police regarding threats given by the unknown persons sent by the accused. They had threatened him either to compromise in the matter or to withdraw the case otherwise they will kill him. On 02.08.2007, 22.09.2007 and 25.10.2007 his wife Smt. Usha Singh has also lodged the FIR against the accused person of threats given by him to her. 6. In his counter affidavit accused-respondent No. 2 had denied the correctness of all the allegations made in both the affidavits and also disputed the correctness of the facts of applications moved as said in the affidavits saying that he had never misused the liberty of bail granted by this Court. Only to pressurize and harass him, this application has been moved. The same was also replied by the applicant. He annexed the copy of the order-sheets of the case of the session trial pending in the court concerned. Heard learned counsel for the applicant and respondent No. 2 and learned AGA for the State and perused the record. 7. From the facts mentioned in the FIR, it reveals that only having doubt on the respondent No. 2 FIR was lodged against him for the murder of their mother. From the record, it appears that third brother of them namely Rajesh Kumar Singh is said to be eye witness of this murder. 7. From the facts mentioned in the FIR, it reveals that only having doubt on the respondent No. 2 FIR was lodged against him for the murder of their mother. From the record, it appears that third brother of them namely Rajesh Kumar Singh is said to be eye witness of this murder. There was a dispute between brothers regarding the ownership and possession of the ancestral house. Police report available on the record shows that before going to jail in this case accused with his wife was living in the same house and after release on bail, when he tried to come back in the house some dispute, altercation, scuffling has taken place and seeing the apprehension breach of peace police has apprehended both the parties and challenged them under Section 151, 107, 116 CrPC. From the report of the police it also reveals that applicant is not permitting to the accused respondent No. 2 to enter in the house. Only due to this reason some scuffling has taken place there. Nowhere it was reported by the police at that time accused had threatened to his brothers or witnesses either to withdraw the case or to file compromise in the matter. Learned counsel argued that applicant and third brother Rajesh Kumar Singh were aggrieved by the order of release of respondent No. 2 on bail and they were intending to have their possession on ancestral house. Only to pressurize Ashok Kumar so that he may not enter in the house one and other applications were moved with the legally help showing that accused is threatening them not to give evidence in the case against him. 8. Learned counsel for the respondent No. 2 has drawn my attention that after January, 2008 there is no complaint against the respondent No. 2 either by the informant or by the witness Rajesh Kumar showing that still respondent No. 2 is threatening them to withdraw the case or not to give the evidence in the matter. Learned counsel for the applicant conceded the fact that now from the last two years his client has not reported any such act of respondent No. 2 with applicant and brother Rajesh Kumar Singh. Now in the circumstances we can now assume that they are living in peace at present. Learned counsel for the applicant conceded the fact that now from the last two years his client has not reported any such act of respondent No. 2 with applicant and brother Rajesh Kumar Singh. Now in the circumstances we can now assume that they are living in peace at present. Already two statements of witnesses are recorded in the session trial which is clear from the copy of the order-sheet filed. Learned counsel for the applicant has not pointed out that any unnecessary adjournment was sought on behalf of accused in the case to delay the trial proceedings. In 2007 on their application police has not taken action against the accused, what follow up action (except this application for cancellation of bail), was taken by them against the accused to get punished him for his misdeed after release on bail not shown on behalf of applicant. Possibility cannot be ruled out that after release of the respondent No. 2 on bail, feeling aggrieved from the same as a counter-blast one after the other complaints were filed on behalf of the applicant and his brother and his wife. As the contents of the applications were not found by the police correct so no action was taken by the police against the accused otherwise the police was free to move an application for cancellation of the bail of the accused or to file charge-sheet against him for the alleged misdeed of him. 9. It is established law that there are different criterias for granting bail and to cancel the bail already granted to the accused. Cancellation of bail is a harsh order because it takes away the liberty of an individual granted and is not to be lightly restored too. Bail granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered fit not longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. From the above discussions and considering the facts and circumstances of the case and taking into consideration of the argument of parties counsel and also taking the present position referred above, I dot not find it a fit case where bail liberty granted to accused should be cancelled. Application has no force and liable to be dismissed. Accordingly, application is hereby dismissed.