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J&K High Court · body

2010 DIGILAW 251 (JK)

Ch. Nagar Singh v. State

2010-05-03

Sunil Hali

body2010
1. Petitioners are facing trial under Sections 409/120-B, 201/34 RPC read with Section 3/25 of the Arms Act. The said trial is being jointly faced by them with accused Jatinder Singh and Royal Singh, who have been charged with offence under Section 302 RPC read with Section 34 and 323 RPC in the same FIR. 2. The incident relates to 29th of Aug’09, when accused Jatinder Singh, who is the son of petitioner No.1 Nagar Singh and nephew of petitioner Nos.2 and 3, accompanied by Royal Singh, fired upon deceased Amandeep Singh, in his house, who succumbed to injuries at Delhi on 30th of Aug’09. The weapon of offence used in the said commission of crime was said to be a desi pistol (kutta), which was recovered on the disclosure statement made by accused Jatinder Singh from the flour mill where he had hidden the same. The said pistol was recovered and seized on the information provided by him to the police and was deposited in Malkhana, Gandhi Nagar Police station, Jammu, on the same day. It is from here the role of present petitioner is stated to have begun in ensuring the destruction of the said weapon of offence or causing its disappearance to screen off the accused Jatinder Singh, from the trial. The motivating factor in the alleged act of the petitioners being that accused Jatinder Singh, as indicated above, is the son of petitioner No.1 and nephew of petitioner Nos.2 and 3. 3. While tracking the role of the present petitioners, the investigation has unearthed the following facts:- a/ that a criminal conspiracy was hatched by the petitioners with the officials of the police department entrusted with the investigation; b/ that telephone calls were made to the SSP concerned on the mobile Nos. 9419012360 and 9622113601, owned by him. The majority of telephone calls emanated from cell No.9697579439 from Ist of Sept’09, to 10th of Sept’09. According to the prosecution, this is the period when conspiracy to swap the original weapon of offence used by accused Jatinder Singh, with a non-functional weapon was hatched; c/ that the telephone calls have been made not only to the SSP and SHO concerned but to the officials of FSL on 4th and 5th of Sept’09. According to the prosecution, this is the period when conspiracy to swap the original weapon of offence used by accused Jatinder Singh, with a non-functional weapon was hatched; c/ that the telephone calls have been made not only to the SSP and SHO concerned but to the officials of FSL on 4th and 5th of Sept’09. It is stated to be the date when the non-functional weapon seized by the police was sent to the FSL for obtaining their opinion; d/ that in pursuance to the said conspiracy, the original weapon which was deposited in the Malkhana on 30th of Aug’09, was recalled from the Malkhana, the seal was broken by the SHO concerned in the presence of then SSP Jammu, Manohar Singh, on the same day. The said weapon was swapped with a non-functional weapon between 30th of Aug’09 to 2nd of Sept’09. The swapped weapon was sent to FSL for test and report obtained thereof was that it was non-functional; e/ The swapping is stated to have been accomplished on 2nd of Sept’09 when it was revealed that Rakesh Kumar had procured a non-functional weapon to be swapped with the original one. The original weapon was handed over to Rakesh Kumar who is stated to have handed over the same to petitioner Nagar Singh. The said weapon was subsequently recovered on 26th of Nov’09, on the disclosure statement made by the said petitioner, who is stated to have disclosed that the said weapon was handed over to him by Rakesh Kumar; f/ that the bullet recovered from the body of the deceased was replaced by Ballistic expert, Mr SH Bukhari, with a different bullet. He, however, could not do it in view of intervention of Deputy Director, FSL, whose timely intervention frustrated the move of the accused; g/ that an amount of Rs.3.10 lacs and Rs.40,000/- was recovered from Mr Bukhari and Raj Singh, which money was given to them by petitioner Rakesh Kumar, for fudging the evidence; h/ that cell No.9697579439, which was consistently used by the petitioners was provided by one Jatinder Singh to them. On investigation, it was found to have been issued in the name of Kamal Kishore, R/o Talab Tillo, w.e.f. 1st of July’09. 4. It seems that after scaning through the customer engagement form, the said subscriber had denied his signatures on the said file. On investigation, it was found to have been issued in the name of Kamal Kishore, R/o Talab Tillo, w.e.f. 1st of July’09. 4. It seems that after scaning through the customer engagement form, the said subscriber had denied his signatures on the said file. On further investigation, this form was found to have been signed by one Ankit Badyal, R/o Shakti Nagar, Jammu. The said form is stated to have been signed by Satinder Kumar @Bani, R/o Trikuta Nagar, on behalf of Kamal Kishore, and the said cell No., was given by Narinder Sharma, who was member of SST, telecom, to Jatinder Singh, who happens to be nephew of the petitioners. The said cell No., is said to have been used by the petitioners in their communication with the police officials during the relevant period. 5. On the basis of the material collected by the Investigating agency, a report under Section 173 Cr.P.C., was prepared and filed in the court of learned Principal Sessions Judge, Jammu. 6. For the purpose of present petition relating to grant of bail, the role of the petitioners is to be judged in identifying their prima-facie involvement in the commission of crime. 7. The charge pertains to disappearance of the original weapon of offence and its replacement with a non-functional weapon. It is stated that all the petitioners have conspired with the Investigating agency headed by the then SSP Manohar Singh, for ensuring disappearance of original weapon of offence which was used by Jatinder Singh, son of petitioner Nagar Singh, with a non-functional weapon. It is stated that all the petitioners have conspired with the Investigating agency headed by the then SSP Manohar Singh, for ensuring disappearance of original weapon of offence which was used by Jatinder Singh, son of petitioner Nagar Singh, with a non-functional weapon. The Investigating Agency, in this respect, has furnished following supporting evidence in support of the allegations against the petitioners:- i/ signatures of three persons in order to establish that the Sim card bearing No.9697579439, was issued in the name of a fictitious person for being used by the petitioners in communicating with the police officials and the status report filed in this regard also makes a mention that Sim card No.9697579439 has been consistently used by Nagar Singh and Rakesh Kumar, on the relevant dates; ii/ presence of petitioners Rakesh Kumar and Jaggar Singh, from 29th of Aug’09, till 7th of Sept’09, in police station, Gandhi Nagar, is supported by the evidence of PW Talib Hussain, Head Constable; iii/ recovery of Rs.3.10 lacs and Rs.40,000/- from Ballistic expert SH Bukhari and Constable Raj Singh, on the disclosure statement made by the accused persons, which money is stated to have been given to the above officials by Rakesh Kumar is supported by evidence of PWs Mangat Ram, Anil Mangotra and Ravi Singh; iv/ seizure of the original weapon of offence in the presence of witnesses Tejpal Singh, Sandeep Singh and Brij Lal, on 30th of Aug’09; v/ Swapped weapon of offence was shown to above witnesses on 22nd of Sept’09, their categoric statement that this was not the original weapon of offence which was recovered in their presence on 30th of Aug’09, and consequent to the seizure of the original weapon of offence on 26th of Nov’09, and its identification by the said witnesses to be the one which was seized on 30th of Aug’09; vi/ recovery of original weapon of offence on the basis of the disclosure statement made by petitioner Nagar Singh, in presence of the Magistrate concerned and consequent re-verification of this weapon by the witnesses who had earlier identified the same on 30th of Aug’09; vii/ the disclosure statement made by Nagar Singh regarding the concealment of the original weapon of offence. His statement that the said weapon was provided to him by Rakesh Kumar, is corroborated by the statement of Subash Chander and one Imtiyaz Ahmed; viii/ handing over of money by Rakesh Kumar to the FSL officials, which has been confirmed by Mangat Ram, Anil Mangotra and Ravi Singh. 8. This in essence is the supporting evidence collected by the prosecution against the petitioners. It is pertinent to mention that report under Section 173 Cr.P.C., reveals that an amount of Rs. 6 Crores was withdrawn from the State Bank of India, which is stated to have been utilized by the petitioners. It is stated that the said amount was meant for the police officials who had changed the original weapon of offence. However, after interrogation of the petitioners, this charge seems to have not been proved as no money has been recovered from any one of the police officials except the amount of Rs.3.10 lacs and Rs.40,000/- recovered from FSL officials namely SH Bukhari and Raj Singh. It is stated that the amount was withdrawn from Oriental Bank and not from the State Bank of India as it carried a slip of the said Bank. 9. The petitioners after the presentation of challan, moved an application for grant of bail before the Principal Sessions Judge, Jammu, who vide its order dt. 9th of Jan’10, has dismissed the same. It is under these circumstances, the present application has been moved under Section 498 of the Code of Criminal Procedure. 10. I have heard learned counsel for the parties and perused the record. 11. The principles which generally govern the grant of bail are relatable to following things:- i/ seriousness of the allegations, severity of punishment, the character of evidence on which the charge is supposed to be sustained, tampering and intimidating the witnesses and chances of running away from the trial. ii/ false implication of the accused, allegations leveled not believable and the wrecking vengeance for political or business reasons. 12. The above principles are in paramateria with the power of the court under Section 498 Cr.P.C. It is also to be noted that at the stage of granting bail, the court can only go into the question as to whether a prima-facie case is established against the accused and cannot go into the evidentiary value, creditability and reliability of the witnesses. However, while examining the circumstances, the character and behaviour of the accused persons is also to be examined. Character, behaviour would mean position and standing of the accused. While vague allegations that the accused will tamper with the evidence, may not be a ground to refuse bail, however, if the accused is of such a character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or would tamper with the evidence, then bail would be refused. I am fortified in this view by a judgment of the Apex Court in the case reported as State of U.P. through CBI v. Amarmani Tripathi, (2005) 8 SCC 21 . What has been observed in this regard in para 18 of the judgment in the aforementioned case may be noticed as under:- "It is well settled that the matters to be considered in application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwsarted by grant of bail (see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State Delhi Admn.). While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan.(SCC pp.535-36, para 11) "11.The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan.(SCC pp.535-36, para 11) "11.The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge (See Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas)." 13. owevIn the present case, it be seen that the accused as alleged by the prosecution have tried to influence the course of investigation by entering into conspiracy with the police officials including the then district head of the police who was heading the investigating agency. This conduct of the accused would be relevant for the purpose of judging their character at this stage for the purpose of grant of bail. 14. There is no dispute that the case against the petitioners is based on circumstantial evidence and there is no direct evidence of fudging. This conduct of the accused would be relevant for the purpose of judging their character at this stage for the purpose of grant of bail. 14. There is no dispute that the case against the petitioners is based on circumstantial evidence and there is no direct evidence of fudging. I say so for the following reasons:- a/ what has transpired between the petitioners and the police officials from 30th of Aug’09 onwards is not known; b/ the inference which can be drawn from the exchange of telephone calls is that number of calls have been made on the date from 30th of Aug’09, onwards, more particularly on 2nd of Sept’09, which is the date when alleged fudging has taken place but the details of the communication are not revealed; c/ that there is no evidence as to from where and who has procured the fudged weapon except the statement of Nirmal Singh, who stated that Rakesh Kumar along with Jaggar Singh, had come to him for procuring a non-functional weapon; d/ what has transpired between Jaggar Singh, Rakesh Kumar and the SHO concerned, has not been revealed by the investigation. Their mere presence in the police station from 29th of Aug’09, onwards till 7th of Sept’09, is an inference which hints towards the possibility of some negotiations going on with the Investigating agency by these petitioners; e/ recovery of tainted money from FSL officials is based upon the disclosure statement made by the accused persons namely SH Bukhari, Raj Singh and Nagar Singh. There is no direct evidence indicating that this amount was paid by Rakesh Kumar in presence of any witnesses; and f/ handing over of original weapon to Nagar Singh by Rakesh Kumar has no direct evidence. 15. For the purpose of appreciating the role of the accused in the alleged crime, prim-facie evidence should indicate that there is probability of the accused being convicted on the material so collected by the prosecution. It is also to be noted that for the purpose of granting or refusing the bail, the case of the petitioners comes under exception to Section 497 Cr.P.C. As already indicated above, there is no direct evidence regarding fudging. 16. Whether the circumstances revealed by the Investigating agency are prima-facie sufficient to sustain the probable conviction of the accused on the said facts, is an issue to be determined in this case. 17. 16. Whether the circumstances revealed by the Investigating agency are prima-facie sufficient to sustain the probable conviction of the accused on the said facts, is an issue to be determined in this case. 17. The bed-rock of the prosecution case is the act of criminal conspiracy hatched by the petitioners with the police and FSL officials. 18. Criminal conspiracy as defined in Section 120-A is an independent offence and is punishable separately. It has following ingredients:- a/ an agreement between two or more persons. b/ the agreement must relate to doing or causing to be done either (i) an illegal act (ii) an act which is not illegal in itself but is done by illegal means. 19. It is now well settled that conspiracy ordinarily is hatched in secrecy. The court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that meeting of the mind is essential and mere knowledge and discussion would not be. Existence of conspiracy and its objectives can be deducted from the surrounding circumstances and conduct of the accused. 20. In this regard, it would be apt to notice what has been said by the Apex Court in the case reported as Baldev Singh v. State of Punjab, 2009 AIR SCW 3730:- "Criminal conspiracy is an independent offence. It is punishable separately;its ingredients being:- (i) an agreement between two or more persons. (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means. It is now, however, well settled that a conspiracy ordinarily is hatched in secrecy. The court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. While however doing so, it must be borne in mind that meeting of the mind is essential; mere knowledge or discussion would not be. The unlawful agreement is sine qua non for constituting offence under Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. The unlawful agreement is sine qua non for constituting offence under Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the Plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement." 21. Applying the above principle to the present case, it be seen that the surrounding circumstances and the conduct of the accused Nagar Singh and Rakesh Kumar , is important to determine whether the conspiracy really exists. For that, following things are discernible:- i/ conversation of the accused Nagar Singh and Rakesh Kumar with the police officials on Cell No.9697579439 on the date from 29th of Aug’09, onwards, is an important circumstance; ii/ disappearance of the original weapon of offence from Malkhana and its replacement by a non-functional weapon, which was sent to the FSL for test where it was reported that the weapon is non-functional, is other circumstance; iii/ recovery of the original weapon of offence on the disclosure statement made by Nagar Singh, whose identity stands confirmed by the witnesses who had earlier identified the said weapon of offence on 30th of Aug’09. iv/ recovery of Rs.3.10 lacs and Rs. 40,000/- from the officials of FSL, which money is stated to have been given to them by Rakesh Kumar for seeking a favourable report in this behalf. 22. There are, however, only two circumstances where the role of petitioner Jaggar Singh, has been highlighted. These are:- i/ that he was seen in the company of Rakesh Kumar in the office of SHO on the dates aforementioned. What actually has transpired there, is not revealed by the investigation; ii/ that he had approached one Nirmal Singh for procuring a desi katta after two-three days of the incident. No such katta was procured by Nirmal Singh. 23. This is the only role played by Jaggar Singh, as revealed by the Investigating Agency. On the basis of the said facts, the role of Jaggar Singh cannot be construed to be the same as that of two other petitioners. He might have the knowledge and discussion about the said conspiracy but it cannot be said that there was meeting of mind regarding actual offence to be committed. On the basis of the said facts, the role of Jaggar Singh cannot be construed to be the same as that of two other petitioners. He might have the knowledge and discussion about the said conspiracy but it cannot be said that there was meeting of mind regarding actual offence to be committed. It is clearly borne out from the facts noticed that except for the aforementioned role, his role cannot be said to be the one which is in furtherance of the conspiracy. However, this is the prima-facie view as on today. What ultimately may transpire during the course of trial has to be seen. 24. Having said so, it be seen that the substantive offence for which the petitioners have been charged is the offence under Sections 201, 409 RPC and 3/25 of the Arms Act. 25. The contention of the petitioners is that the object of conspiracy in the present case was the destruction of evidence and not the misappropriation of the subject matter of evidence. It is contended that the petitioners cannot be charged with offence under Section 409. The other contention raised is that the material and the supporting evidence collected by the prosecution is no evidence in the eye of law and, as such, no conviction can be based on such evidence. The further contention raised is that the evidence which is sought to be used against the petitioners is based on disclosure statements made by petitioner Nagar Singh and the officials of the FSL. In essence, these are confessional statements which cannot be made before the police officials. It is stated that there is no substantive evidence on the basis of which the petitioners can be charged. It is contended that reliance placed on the statements made under Section 27 of the Evidence Act, can be only corroborative piece of evidence. 26. On the other hand, Mr. Sethi, learned Senior counsel, appearing for the respondent State contended that the object of conspiracy might have been to destroy the weapon of offence but it is further to be seen that the said weapon of offence is a property not only entrusted to the Investigating Agency but they had the domain over the said property. It is further contended that disappearance of weapon of offence completes the offence under Section 409 RPC and the role of petitioners in doing so cannot be ignored. It is further contended that disappearance of weapon of offence completes the offence under Section 409 RPC and the role of petitioners in doing so cannot be ignored. It is further contended that the merit of the evidence or otherwise of the evidentiary value cannot be judged at this stage. 27. The contention raised by the petitioners relates to the merit of the evidence and its evidentiary value. These are the issues which perhaps cannot be discussed at this stage as rightly observed by the trial court. For the purpose of bail, what is required to be seen is as to whether prima-facie there are circumstances which link the accused with the crime This court cannot, at this stage, be asked to judge the issues relating to the merits of the evidence. However, the petitioners would be well within their rights to raise all these issues before the trial court at the time of framing of charge. 28. Be that as it may, the only issue which is required to be considered at this stage is whether the petitioners in view of the above circumstances, are entitled to bail. 29. There is no dispute that the petitioners are involved in an offence which carries a maximum punishment of ten years or life imprisonment. While dealing with an application for grant of bail, there should be reason to indicate in the order for prima-facie concluding why the bail was granted where the accused are charged of serious offence. Even in cases where it is prima-facie disclosed that the accused are entitled to bail on the basis of material collected by the prosecution, even then, the bail cannot be granted as a matter of course unless certain other aspects are taken care of. The purpose of not granting the bail is to ensure presence of accused during the trial and in not intimidating the course of investigation either by winning over the witnesses or harassing the complainant party. The underlining principle is to ensure that the accused faces the trial. The impelling circumstances which may compel the accused to run away from the trial is the nature of offence and severity and punishment involved. It is in view of this principle that Section 497(1) Cr.P.C., has been incorporated which provides that a person accused of an offence which is punishable with death or imprisonment for life is not entitled to bail. It is in view of this principle that Section 497(1) Cr.P.C., has been incorporated which provides that a person accused of an offence which is punishable with death or imprisonment for life is not entitled to bail. There is a statutory impediment in granting bail in such cases whereas, in all other offences except the one covered by the special act, the accused becomes entitled to bail. However, following things are to be taken into consideration while granting bail:- i/ the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; ii/ reasonable apprehension of witnesses being won over or apprehension of threat to the complainant; and iii/ the affect on the public at large. 30. The bed-rock on the basis of which the principles of granting or refusing the bail are to be applied is that the accused faces and allows the trial to be concluded fairly. 31. While applying the aforementioned principles, it is necessary for the court to examine the nature and gravity of the circumstances under which the offence is committed. Existence of a prima-facie case is essential. If there is no prima-facie case, there is no question of considering other circumstances. Even where a prima-facie case is established the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tempering with the evidence. 32. Applying the above principle to the present case, it be seen that prima-facie there are circumstances as mentioned here-in-above indicating the element of conspiracy and commission of fudging of evidence against the petitioners Nagar Singh and Rakesh Kumar. However, existence of a prima-facie case against them would not disentitle them from grant of bail. But whether the presence of the accused would be readily available for trial or they are likely to abuse the discretion granted in their favour by tampering with the evidence or intimidating the complainant party is to be seen. 33. However, existence of a prima-facie case against them would not disentitle them from grant of bail. But whether the presence of the accused would be readily available for trial or they are likely to abuse the discretion granted in their favour by tampering with the evidence or intimidating the complainant party is to be seen. 33. The circumstances which have been brought into focus by the respondents regarding the conduct of the accused and their capacity to influence the course of trial is linked to the fact that they have managed the then Investigating Agency headed by the district head of the police. It is further contended that the conduct of the accused in not surrendering before the Investigating agency is another circumstance which weighs against them. 34. So far as the conduct of the accused in not surrendering before the Investigating Agency is concerned, I am not in agreement with the said contention of the learned senior counsel appearing for the respondent State in this behalf. The petitioners were legitimately pursuing the remedy available to them under Section 497-A. The circumstances leading to their surrender as projected by the prosecution may have some substance but the fact of the matter is that immediately after their bail application was cancelled, they surrendered before the police. It is also important to note that nothing has been brought on record by the prosecution that the petitioners tried to intimidate the witnesses during the period prior to their surrender. 35. The fact remains that petitioners Nagar Singh and Rakesh Kumar, as noted above, managed to influence the then district Chief of the police heading the earlier investigating agency as also other police officials in swapping the original weapon of offence as alleged by the prosecution. This past conduct of the accused, as indicated above, would be relevant for the purpose of judging their character at this stage for the purpose of grant of bail. And this, in my view, is not an ordinary event looking to its affect on the society at large and the growing feeling amongst the public at large that criminal justice system in the country has literally failed. It also reflects the amount of influence which the petitioners carry to thwart the investigation in the case. As revealed from the record produced by the prosecution, the petitioners are dealing with the business at a large scale. It also reflects the amount of influence which the petitioners carry to thwart the investigation in the case. As revealed from the record produced by the prosecution, the petitioners are dealing with the business at a large scale. Their status in the society as leading business-men is not disputed by the petitioners also. The influence which has been used by them to swap the weapon of offence has wider ramifications on the course of trial. The said influence based upon their money power possessed by them cannot be ruled out. 36. For the reasons stated above, this past conduct of the petitioners in this respect cannot be over-looked as stated here-in supra as the character, behaviour would mean the position and standing of the accused while considering their bail. At the same time, it would also be unsafe to keep the petitioners under lock up on these grounds for the whole trial. However, keeping in view the facts and circumstances of the present case as noticed above, it would be necessary to withhold their bail till the eye witness Tejpal Singh is examined. He can be vulnerable as he is not related to the complainant party. Regarding two other eye witnesses i.e. the mother and brother of the deceased, they cannot be expected to be influenced by the petitioners. However, these two witnesses can complain of intimidation or been threatened for which protection is required to be given to them by the prosecution as and when they approach the trial court and the same shall be provided to them unless not already provided. 37. Regarding other witnesses who mostly are police officials, the plea of intimidation as raised by the respondent-State can be considered only if the petitioners are out on bail and not at this stage. The conduct of the accused in that eventuality can be a ground for cancelling their bail. 38. For the reasons mentioned above, the present bail application in so-far-as it relates to petitioners Nagar Singh and Rakesh Kumar is dismissed. The said petitioners, however, shall be at liberty to move a fresh application in this regard before the trial court after the recording of evidence of eye witness Tejpal Singh and if possible of other two eye witnesses if examined by the trial court in the same calendar prescribed by it. The said petitioners, however, shall be at liberty to move a fresh application in this regard before the trial court after the recording of evidence of eye witness Tejpal Singh and if possible of other two eye witnesses if examined by the trial court in the same calendar prescribed by it. What is emphasized is that if it is possible to examine all the three eye witnesses in the same calendar, then the fresh bail application, if any, filed by the petitioners be taken up after the conclusion of their statements. However, in case, it is not possible to do in the same calendar, the same may be done after recording of the statement of Tejpal Singh. However, it is expected that the trial will be commenced expeditiously and the statement of the said eye witnesses will be recorded first by the trial court. It be noted that, in case, the petitioners succeed at the charge stage in seeking modification of charge of the substantive offence, then the trial court will consider the application for bail, if any, moved by the aforementioned petitioners on its merit uninfluenced by any observation made in this order. 39. So far as petitioner Jaggar Singh is concerned, I find no reason to withhold his bail. He is accordingly granted bail for a period of three months subject to his furnishing of cash security to the tune of Rs.1 lac with one surety of the like amount to the satisfaction the trial court. The said petitioner will furnish an undertaking before the trial court that he will not leave the jurisdiction of this court and will not influence the witnesses or intimidate the complainant party. The said petitioner shall also surrender his passport before the trial court. However, it is observed that in case the prosecution collects any material during the period petitioner is on bail, that he has influenced the witnesses or tried to intimidate the complainant, the prosecution would be well within its right to move an application for cancellation of the bail of the said petitioner. 40. Petitioner Nagar Singh, has moved an application for grant of bail on health grounds also. Alongwith the application, he has annexed certificates issued by various doctors indicating therein that the petitioner requires immediate medical attention. 40. Petitioner Nagar Singh, has moved an application for grant of bail on health grounds also. Alongwith the application, he has annexed certificates issued by various doctors indicating therein that the petitioner requires immediate medical attention. In view of the fact that no objections have been filed by the respondents, no decision could be taken on the said application at this stage. However, the said petitioner, if so advised, may file a fresh application before the trial court and, in case, the same is done, the trial court after considering the same shall pass appropriate orders, which may include referring of the matter to the Medical Board. Any observation made here-in-above shall not affect the course of the trial. The trial court shall proceed un-influenced by any observation made here-in-above. 41. Parties to appear before the trial court on 10th May’10. Record of the trial court be returned. Disposed of accordingly.