Basanti @ Basant vs State Of Madhya Pradesh

This is second repeat application under Section 439 of CrPC for grant of bail. First application (M.Cr.C.No.12578/2019) was dismissed as withdrawn by order dated 5.4.2019.

The applicant has been arrested on 16.4.2017 in connection with Crime No. 118 of 2017 registered by Police Station Indergarh, District Datia for the offence under Sections 302, 201, 34 of IPC.

It is submitted by the counsel for the applicant that according to the statement of son of the deceased, co-accused Rajesh Kushwah had pressed the neck of the deceased, whereas the applicant had caught hold of his legs and the wife of the deceased had also actively participated in the commission of offence. Further, it is submitted that co-accused Rajesh Kushwah against whom there is an allegation of pressing the neck has been granted bail by order dated 2.11.2018 passed by the Coordinate Bench of this Court in M.Cr.C.No.44245/2018.

Considered the submissions made by the counsel for the applicant. The first application of the applicant was dismissed as withdrawn vide order dated 5.4.2019, whereas co-accused Rajesh Kushwah was already granted bail by order dated 2.11.2018, therefore, grant of bail to co-accused Rajesh Kushwaha cannot be said to be a change circumstances. Furthermore, co-accused Rajesh Kushwaha was granted bail on the ground that the son of the deceased, Raghvendra, who is an eye-witness, has not supported the prosecution case in respect of co-accused Rajesh Kushwah, whereas it is fairly conceded by the counsel for the applicant that Raghvendra, the son of the deceased, has narrated against the applicant. Thus, it is evident that the case of Rajesh Kushwaha is clearly distinguishable from the present case, and therefore, the present applicant does not get any advantage of the bail granted to co-accused Rajesh Kushwaha. It is further admitted by the counsel for the applicant that out of 18 witnesses 15 have already been examined. Thus, there is no delay in trial also.

It is submitted the counsel for the applicant that since Raghvendra, son of the deceased, has not supported the prosecution case in toto, therefore, his evidence is not reliable and this Court while considering the bail should also consider the credibility and reliability of the witness.

Submission made by the counsel for the applicant cannot be accepted. The Supreme Court in the case of Satish Jaggi vs. State of Chhattisgarh and others reported in (2007) 11 SCC 195 has held as under :-

"12. Normally if the offence is non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the Court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial."

Accordingly, the reliability and credibility of a witness cannot be considered by this Court at the stage of grant of bail. The said exercise is to be done by the trial Court. No case is made out warranting grant of bail. The application is accordingly rejected.