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2023 DIGILAW 20 (RAJ)

Mahipal v. State of Rajasthan Through PP

2023-01-03

DINESH MEHTA

body2023
ORDER 1. The present bail application under Section 439 of the Code of Criminal Procedure has been filed by the applicant who is in custody in connection with the FIR No.23/2016 registered at Police Station Panchodi, District Nagaur for the offences punishable under Sections 148, 353, 332, 307, 302, 216, 468, 471 read with 149 of Indian Penal Code and Section 3 of the Prevention of Damage to Public Property Act and Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act and Section 3/25 & 7/27 of the Arms Act. 2. Mr. Dhirendra Singh, learned senior counsel assisted by Mr. Vijay Bishnoi argued that in an unnamed FIR, the applicant has been falsely implicated merely on the ground of his antecedents, regardless of the fact that there is no evidence worth the name pointing towards involvement of the applicant. 3. He submitted that though on 02.12.2022, an argument was advanced by the learned counsel for the applicant that the identification parade of the present applicant (Mahipal Singh) was not conducted by the Investigating Officer, but on perusal of the copies of the identification parade, which have been produced by learned Public Prosecutor, he would not press such argument in the manner it had been advanced. 4. He argued that even, it is accepted that identification parade was conducted, the memorandum of identification (QnZ f’kuk[rxh) qua the applicant has not been produced in the Court which is evident from the perusal of the statement of Harendra (PW-4). 5. Learned senior counsel navigated the Court through the testimony of Harendra (PW-4) who has purportedly identified the applicant in order to substantiate his stand that identification memo (QnZ f’kuk[rxh) has not been produced before the court. It is also argued that even during the cross-examination of Govind Ram (PW-5), it has come on record that identification memo of present applicant (Mahipal Singh) is not on record. 6. Learned senior counsel further argued that apart from the fact that memorandum of identification qua the applicant is not on record, even PW-4 and PW-5 who were eye witnesses and were present at the time of incident did not make any assertion about the applicant’s presence at the scene. 7. He highlighted that though on the date of statement i.e. 22.11.2021, all the accused persons including the applicant were present in the court, no deposition was made about applicant’s involvement in the incident. 8. 7. He highlighted that though on the date of statement i.e. 22.11.2021, all the accused persons including the applicant were present in the court, no deposition was made about applicant’s involvement in the incident. 8. Learned senior counsel also produced for perusal of the Court, a certified copy of the proceeding dated 22.11.2021. 9. Learned senior counsel submitted that the applicant is behind the bars for last six years and the trial will take long time inasmuch as out of 61 witnesses, only 14 witnesses have been examined so far. 10. Learned Public Prosecutor opposed the applicant’s prayer for grant of bail by contending that the applicant is a part of dreaded gang which is indulged in heinous crimes throughout the State. He argued that release of applicant on bail will be against the interest of society at large. 11. Heard learned senior counsel for the applicant and learned Public Prosecutor and perused the material available on record. 12. This Court finds substance in the submission made by the learned senior counsel that when the FIR does not disclose names of the persons involved, the only evidence against the applicant (Mahipal Singh) could have been the testimony of PW-4 and PW-5 - the police constables who were present at the time of incident when the deadly confrontation took place. Neither PW-4 nor PW-5 in their statement have named the present applicant. They have not even identified him though he was very much present in the court when their statements were being recorded. 13. It is rather surprising that though identification parade was conducted and Harendra (PW-4) had identified the present applicant during investigation but identification memo concerned was not produced before the court. The applicant has not been identified by any of the witnesses during the course of their deposition. More particularly, when PW-4 & Pw-5 are the crucial witnesses being present at the scene. 14. In view of the aforesaid facts and circumstance, this Court is inclined to accept the bail application filed by the applicant. 15. Consequently, the present bail application filed under Section 439 of the Code of Criminal Procedure is allowed. It is ordered that the applicant - Mahipal S/o Kiran Singh arrested in connection with FIR No.23/2016 registered at Police Station Panchodi, District Nagaur shall be released on bail; provided that he executes a personal bond in the sum of Rs. 15. Consequently, the present bail application filed under Section 439 of the Code of Criminal Procedure is allowed. It is ordered that the applicant - Mahipal S/o Kiran Singh arrested in connection with FIR No.23/2016 registered at Police Station Panchodi, District Nagaur shall be released on bail; provided that he executes a personal bond in the sum of Rs. 2,00,000/- and two sureties of Rs. 1,00,000/- 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. 16. Needless to mention that the above observations made by this Court are on the basis of material so far produced before the Court. These are only prima-facie observations and the same shall however, not come in the way of the trial Court to take independent view of the matter, based on ocular and oral evidence, while finally deciding the case.