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2012 DIGILAW 2177 (RAJ)

Prashant Khandelwal v. State of Rajasthan

2012-11-05

RAGHUVENDRA S.RATHORE

body2012
JUDGMENT 1. - Heard learned counsel for the parties. 2. This application under section 439 Cr.P.C. has been filed by the petitioner against the order of rejection of bail passed by the learned Additional District Judge (Fast Track) No.1, Bharatpur, on 08.10.2012. 3. In the instant case, a report came to be lodged by one Banwari Lal Agarwal on 22.12.1996 for the offences under Section 279 and 304-A IPC with regard to an incident which had taken place on 13/14.12.1996. In the said incident, Bharat Bhushan had died. On conclusion of investigation, challan came to be filed against two persons, namely Lokesh Kumar and Veerpal on 07.11.1998, for the offence under Section 279 and 304-A IPC. The said case is still pending trial. 4. Subsequently, a complaint came to be lodged, again by the aforesaid informant Banwari Lal Agarwal on 27.04.1998 against eleven persons, including the above mentioned four accused against whom challan had been filed. The learned Magistrate took cognizance on 19.04.2007 against four persons, namely Lokesh, Prashant, Jaikishan and Dhanesh Chand for the offences under Section 109, 120-B, 214 and 302 IPC. The order of cognizance was challenged by the accused persons before the learned Sessions Judge and thereafter before the High Court (SB Cr. Misc. Petition No.2080/2007) but without any success as the same came to be dismissed by High Court on 31.01.2011, inter alia on the ground that second revision petition is not maintainable. 5. Later on, the accused Jaikishan was arrested and the present petitioner Prashant surrendered before the court below on 28.05.2012. The charges have been framed by the learned trial court, on 23.06.2012, against the aforesaid four persons under Section 302 and 120-B IPC. The said order of charge was challenged by Dhanesh (S.B. Cr. Revision Petition No.690/2012) and by Jaikishan and Prashant (1033/2012). The revision petition filed by Dhanesh Sharma had come to be allowed by the High Court on 11.09.2012 and the impugned order of charge dated 23.06.2012 passed by the learned court below was set aside. The trial court was directed to rehear the prosecution and the accused on the point of charge, without being influenced by the previous order and pass a fresh order to frame charge or discharge the petitioner for the said offence in accordance with law. In the revision petition filed by Jaikishan and Prashant, the present petitioner, the High Court had granted stay on 03.10.2012. In the revision petition filed by Jaikishan and Prashant, the present petitioner, the High Court had granted stay on 03.10.2012. 6. It has been argued by the learned counsel for the accused petitioner that the informant/complainant had himself lodged a report in the present case which related to the incident of 13/14.12.1996 for the offences under Section 279 and 304-A IPC. Thereafter when Panchnama/Postmortem report were prepared, an endorsement had been made in the presence of the informant that the death of the deceased had taken place due to accident. The learned counsel for the petitioner has extensively read before this Court the subsequent complaint filed by the informant Banwari Lal Agarwal (Annexure-3) pointing out that the same does not speak out anything in respect of conspiracy and other facts which had been taken into consideration by the learned court below. In other words, he has submitted that it was not pleaded by the informant with regard to facts relating to conspiracy for committing the offence of murder and the learned trial court has erroneously attracted the said offences. He has also invited the attention of this Court to the bail application filed by the accused petitioner before the learned District Judge, bringing out the material facts of the case and the grounds raised before it, distinctly on every and each issue. Learned counsel for the petitioner has also placed reliance on the case of Ashwani Kumar Bhardwaj v. State of Rajasthan, 1998 Cr.L.J. 252. 7. The learned Public Prosecutor has opposed the bail application and submitted that the accused persons have committed the offence and there was reason behind it because the deceased had some relations with the sister of the accused. Further it has been submitted that the accused was involved in hatching conspiracy in the present case. He has also submitted that the bail application of co-accused Jaikishan has been rejected by the High Court on 16.07.2012.In addition to it, the complainant/informant, present in person, has submitted that the death was not caused on account of accident of scooter. It is submitted by him that in the present case, hired persons were engaged for commission of the offence and the accused petitioner could not be arrested for a long time. He has also submitted that there were more persons involved in the present case but they have been made witnesses. It is submitted by him that in the present case, hired persons were engaged for commission of the offence and the accused petitioner could not be arrested for a long time. He has also submitted that there were more persons involved in the present case but they have been made witnesses. According to him, in the present case, the offence has been committed after due planning. 8. I have given my anxious and thoughtful consideration to the submissions made by the counsels for the rival parties as as well as the complainant and have carefully perused the material on record. The documents filed by the complainant includes the order passed by the learned Sessions Judge under Section 438 Cr.P.C., the orders passed by the High Court on 19.07.2011, 16.07.2012, etc. and all of them have been carefully perused by this Court. 9. The relevant and undisputed facts which emerges from the record are that the incident had taken place in the night of 13/14th December, 1996 and thereafter the father of the deceased had himself lodged a report on 22.12.1996 for the offences under Section 279 and 304-A IPC. During investigation, the relevant evidence was collected and the memos with regard to panchnama, etc. were prepared in presence of the father of the deceased, the complainant. In all such evidences collected during the investigation, mention has been specifically made that the death of the deceased has been caused on account of accident. Thereafter a separate private complaint came to be filed, after one year and four months and cognizance was taken by the learned Magistrate, primarily for hatching conspiracy to commit an offence of murder.It would not be out of place to mention here that from the record it is revealed that earlier a report was lodged with regard to theft of the scooter which had met with an accident, leading to lodging of the aforesaid report by Banwari Lal. The said report was lodged under Section 379 IPC. It is noteworthy to mention here that on conclusion of investigation, the police held Lokesh and the deceased Bharat Bhushan as accused but on account of death of Bharat Bhushan, the charge sheet came to be filed only against accused Lokesh. 10. The said report was lodged under Section 379 IPC. It is noteworthy to mention here that on conclusion of investigation, the police held Lokesh and the deceased Bharat Bhushan as accused but on account of death of Bharat Bhushan, the charge sheet came to be filed only against accused Lokesh. 10. The prosecution has rather come with a unique case in respect of the incident which took place on 13/14th December, 1996, by a report for the offences under Section 279 and 304-A IPC, for which trial is still pending and a case on complaint for the offences under Section 302 and 120-B IPC. So far as the offence of hatching conspiracy is concerned, there is no prima facie evidence on record to that effect, much less to say in accordance to the provisions of Section 10-A of the Indian Evidence Act. Such two parallel cases relating to one incident initiated by the same person, viz. Banwari Lal, are still pending trial before the court below. The petitioner is in custody since the month of May, 2012. The charge framed by the learned trial court had been challenged before the High Court and one petition had been allowed and the other is still pending with an interim order. Adjudication of the case before the High Court and the conclusion of the trial in the instant case is likely to take time. 11. In view of the above, it is apparent that the first version of the prosecution is revealed from first information report lodged by the informant Banwari Lal and no grievance in respect of the investigation was ever made till it was concluded and challan was filed for the offences under Section 279 and 304-A IPC. Moreover, no petition in protest of the conclusion of the investigation was filed before the court in which challan was filed. The other version of the prosecution has come only in the month of April, 1998, whereas the incident has taken place on 13/14.12.1996. Further, as the case in respect of offences under Section 279 and 304-A IPC is still pending trial, the prosecution is proceeding with two parallel versions, one of accident and that of conspiracy for murder. The other version of the prosecution has come only in the month of April, 1998, whereas the incident has taken place on 13/14.12.1996. Further, as the case in respect of offences under Section 279 and 304-A IPC is still pending trial, the prosecution is proceeding with two parallel versions, one of accident and that of conspiracy for murder. In such a situation, the prosecution is yet to come with a clear case, what to say about establishing a prima facie case against the accused persons for the offences under Section 302 and 120-B IPC. Therefore, this Court is of the considered opinion that it would be just and proper to enlarge the petitioner on bail. 12. Consequently, this bail application is allowed and it is ordered that the accused-petitioner Prashant Khandelwal S/o Shri Jai Kishan Khandelwal in F.I.R. No.243/1996, registered at Police Station Chiksana, District Bharatpur, shall be released on bail; provided he furnishes a personal bond of Rs. 50,000/- and two surety bonds of Rs. 25,000/- each to the satisfaction of the learned trial court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so.Bail allowed. *******