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Madhya Pradesh High Court · body

2014 DIGILAW 1236 (MP)

Shiv Kumar Dahle v. State of M. P.

2014-09-29

U.C.MAHESHWARI

body2014
ORDER 1. Heard. 2. This third repeat petition is preferred under section 439 of CrPC for grant of bail, as the applicant is in custody since 7.5.2008, in connection of Crime No.108/08 registered at Police Station Kotwali, Balaghat for the offence under sections 325/149, 302/149, 148 and 323/149 of IPC. 3. It is noted that his earlier first application filed in this regard was dismissed as withdrawn and not pressed vide order dated 13.6.2013, in MCrC No.5011/13, while his subsequent application was also dismissed as withdrawn and not pressed vide order dated 28.1.2014 in MCrC No.7904/13, with a direction to conclude the trial on or before 30.6.2014 with a further direction to sent the status and progress report of the trial on every interval of two months. In compliance of such direction, the last progress report dated 27.8.2014 is received from the Court of Ist Additional Sessions Judge Balaghat, according to which, as many as 45 witnesses have been examined till 21.8.2014 and 13 material prosecution witnesses are yet to be examined in the matter for which the date was fixed 17.9.2014, 18.9.2014 and 19.9.2014. What happened on such dates, such information is not available on record. 4. On asking the applicant’s counsel whether the matter should be heard on merits today or after calling the progress report of the aforesaid dates of the impugned trial on which, he insisted me to hear the arguments on merits. 5. Considering his prayer, the case is taken up for final disposal on merits. 6. Applicant’s counsel after taking me through the petition and the papers placed on the record argued that immediately after happening the alleged incident the enquiry was initiated and on such enquiry, the DIG (Jail) has stated that present applicant and some other persons were not involved in the alleged incident, while the persons who are eye witnesses of the impugned case, were involved in such incident. In continuation he said that, by fabricating the concocted story and on false allegation, the applicant and other co-accused have been implicated in the matter as an accused because the applicant was facing the awarded jail sentence of some other case in the same jail. In continuation he said that taking into consideration the conduct and character of the applicant in the jail, the Jail Authority has appointed him as Convicted Officer of the jail (C.O.). In continuation he said that taking into consideration the conduct and character of the applicant in the jail, the Jail Authority has appointed him as Convicted Officer of the jail (C.O.). In continuation he said that the deceased persons, injured persons and the eye witnesses of the case were from the same group and the applicant was not either from their group or some other group of the jail and such incident was happened because of inter-se dispute of the witnesses, deceased and the injured persons and not on account of any dispute of present applicant and other accused except the group of deceased, eye witnesses and injured person. But subsequently, by concealing the actual facts of the incident on the basis of false allegation, the applicant was also involved in the matter as an accused. He further submits that in any manner, the name of the applicant has not been recommended by the DIG (Jail) in such report as culprit of the incident and considering such aspect, the co-ordinate Bench of this Court has extended the benefit of bail to Hukum Singh Armo, Jailer of such Jail, Gyaniram and Sevakram, the then detained prisoners of such jail. One Shiv Shanker @ Gudda has also been released on bail by the co-ordinate Bench. Thereafter, one co-accused Kunjilal, has been released on bail by the trial Court. In continuation he said that in trial as many as 45 prosecution witnesses have been examined and none of them has stated any incriminating thing against the present applicant. In addition to it, he also said that the applicant has already suffered six years and six months in the judicial custody and trial will take it’s time in disposal, that may be month’s together or years together. He also said that the applicant is situated in the similar circumstances in which the co-accused released on bail, therefore, in the lack of any distinguishable case against the applicant, he deserves for grant of bail on the principle of parity. With these submissions he prayed to grant the bail to the applicant. 7. He also said that the applicant is situated in the similar circumstances in which the co-accused released on bail, therefore, in the lack of any distinguishable case against the applicant, he deserves for grant of bail on the principle of parity. With these submissions he prayed to grant the bail to the applicant. 7. Responding the aforesaid arguments with the assistance of the case diary learned P.L. argued that the alleged incident was happened inside the jail in which on account of act committed by the applicant and other accused, as many as two persons have died and nine persons have sustained the injuries and out of them, 3-4 prisoners sustained the grievous injury of fracture on their different part. In continuation he said that, the report which was referred by the applicant’s counsel was given on the basis of some departmental proceedings which may be a good defence for the applicant in trial and in cross-examine of the prosecution witnesses, but that cannot be taken into consideration while dealing with the bail application of the applicant to discard the evidence collected in the investigation of the criminal case on which the impugned charge-sheet was filed. In continuation he said that, mere perusal of the charge-sheet, it is apparent from the papers and the interrogatory statements of the witnesses that the applicant was also involved actively in the alleged incident and due to that, inside in the jail two persons have been died and nine persons sustained the injuries. In such premises, it is a very serious offence. So far as the recorded depositions of the prosecution witnesses are concerned, he said that as many as 45 witnesses have been examined and such recorded evidence is to be appreciated by the trial Court at appropriate stage of the judgment and not prior to that, while dealing with the bail application as per settled proposition, such evidence may not be appreciated by this Court otherwise the right of either party may be prejudiced at the time of final adjudication of the trial. He further said that in near future probably, within two-three months, the trial is to be concluded and, therefore, looking to the seriousness of the offence and the act of the present applicant in the alleged incident, he does not deserve for grant of bail. He further said that in near future probably, within two-three months, the trial is to be concluded and, therefore, looking to the seriousness of the offence and the act of the present applicant in the alleged incident, he does not deserve for grant of bail. So far as the ground of parity as advanced by the applicant’s counsel is concerned, learned panel lawyer inspite asking by the Court, has not made any submission. 8. Having heard the counsel at length, keeping in view their arguments, I have carefully gone through the record available with the file so also the case diary available with the Panel Lawyer. 9. It is undisputed fact that the alleged incident was happened inside the jail in which various prisoners including the present applicant, were detained. It is also undisputed fact that in the alleged incident, two persons have been died and nine persons sustained the injuries and out of them, 3-4 prisoners have sustained the grievous injuries. Subsequent to it, some enquiry was conducted by the DIG (Jail), but I am of the considered view that in view of the papers of the charge-sheet and police report of section 173 of CrPC, the report of the DIG (Jail) could not be considered in the present matter while dealing with the bail application because such report being document of the defence of the accused could be considered by the trial Court at the time of adjudication of the case. 10. So far as the appreciation of the available recorded prosecution evidence of the case at the stage of bail application is concerned, I am of the opinion that in near future the trial of the impugned case is going to be concluded, then appreciation of the evidence by this Court may prejudice the right of either of the parties i.e. applicant and the respondent-prosecution. So I do not found fit to appreciate the evidence at this stage. 11. So far as the ground of parity is concerned, on perusing the earlier orders dated 13.6.2013 passed by this Court in MCrC No.5011/13, and on 28.1.2014, passed in MCrC No.7904/13, I have found that ground of parity was available and argued by the counsel on earlier occasion also and on such count also the case of the applicant was not found fit for grant of bail. On 13.6.2013 in response of some query of the Court based on the averments of the FIR as well as interrogatory statements of the witnesses, applicant’s counsel has withdrawn the petition as not pressed. If the principle of parity was not considered on earlier occasions by this Court, then at the stage of third repeat petition on such count, the applicant could not be extended the benefit of bail. So on such count and specially keeping in view that on 27.8.2014, the trial Court has sent the status report with a further prayer for extending the period of 4 to 6 months to conclude the trial because 13 material prosecution witnesses are yet to be examined in the matter, I am not inclined to grant the bail to the applicant at this stage. Consequently, the petition is hereby dismissed with a direction to the trial Court to hold the trial of the impugned case on day today basis and conclude the same before Winter Vacation 2014, under intimation to this Court and if the trial is not concluded with the aforesaid period, then the applicant shall be at liberty to revive the prayer again for grant of bail under section 439 of CrPC. 12. A copy of this order be sent to the Ist Additional Sessions Judge Balaghat, within 7 working days from today.