Dharmender Singh vs Om Parkash @ Nanha

Dr. (Mrs.) Sarojnei Saksena, J.

Petitioners are claiming cancellation of bail granted to respondent No. 1 on 19.5.1997.

Brief facts of the case are that a case under Section 302 of the Indian Penal Code was registered against respondent No. 1 for commiting murder of father of the petitioners. In that case High Court granted bail to the respondent No. 1 on 19.5.1997.

Petitioners'' contention is that accusedrespondent No. 1 is misusing the liberty. In the first week of June, 1997 when petitioner No. 1 visited his fields, respondent No. 1 met him and greatened him not to depose against him in the Court otherwise, he would be eliminated.

At that time petitioner No. 2 rescued him from the hands of the respondentaccused. Again on 2.7.1997 when petitioner No. 2 visited his fields alongwith his brotherinlaw Shri Rai Singh, respondentaccused came there, armed with a lathi and asked the petitioner No. 2 that he has already murdered his father and threatened him that in case he appeared as a prosecution witness in the murder case, which is pending against him in the District Court, Sonepat, he would meet the same fate and would be killed. Respondent accused started beating petitioner No. 2 with lathi. Petitioner No. 2 sustained injuries; he was admitted in Civil Hospital. On 3.7.1997 Medico Legal report was prepared; he lodged the report at Police Station Rai; on 3.7.1997 Calendera under Section 107/151 of the Code of Criminal Procedure was registered. Both the parties were bound down for one year on furnishing the security in the sum of Rs. 10,000/. Thus, according to the petitioners, respondentaccused is threatening and terrorizing the witnesses from giving the statements in that murder case.

Respondentaccused has denied all these allegations in his reply.

During arguments, petitioners'' learned counsel also placed on record the zimini order dated 27.11.1997 of this murder case to show that one PW was present in the Court, was given up on the ground that he has been won over by the accused. Petitioners'' learned counsel submitted that this witness was an eye witness of this murder case, but because of the threats given by the respondentaccused, witnesses are not willing to make statements in the Court. The learned counsel also pointed out that from Calendera Annexure P3, it is evident that when both the parties were summoned at the Police Station, even at that time accusedrespondent started abusing the petitioner No. 2 Anil Kumar and even was ready to kill him. Head Constable tried to dissuade him, but he did not listen to him; thereafter, he recorded the Calendera. On that premise, petitioners'' learned counsel submits that the bail granted to the accusedrespondent be cancelled.

Learned counsel appearing for respondent No. 1 accused, relying on Lakhmir Singh alias Lakhbir and others v. The State of Punjab, 1981(VIII) Criminal Law Times 158 contended that on this ground alone, bail cannot be cancelled. Section 116 of the Code of Criminal Procedure provides for interim security. According to the learned counsel, it is yet to be established whether those proceedings under Section 107/151 of the Code of Criminal Procedure are well meant or a mere measure to influence the Court to withdraw the concession of bail.

During arguments, it was also submitted that this murder case was listed for recording the prosecution evidence on 28.4.1997, 18.10.1997 and now it is fixed for 20.4.1998. The remaining material witnesses to be examined in this murder case are, both the petitioners. There is no other eye witness to be examined in this murder case.

After hearing the rival contentions, in my considered view, the petition is liable to be allowed.

The facts of Lakhmir Singh''s case (spurs) are slightly distinguishable. In that bail was granted just 7 days before the application under Section 439(2) of the Code was filed for cancellation of bail and there was no other material except the fact that the proceedings have been initiated under Section 107/151 of the Code of Criminal Procedure. In this case bail was granted to respondentaccused on 19.5.1997 and thereafter as the allegations are that in June, 1997 he threatened petitioner No. 1 and on 2.7.1997 when petitioner No. 2 Anil Kumar visited his fields along with his brotherinlaw Shri Rai Singh, respondentaccused came armed with lathi, not only gave threats but also belaboured him with lathi causing seven injuries on his person, as are reproduced at Annexure P2. Petitioner No. 2 was taken to hospital; Medico Legal report was prepared; then on 3.7.1997 he lodged the complaint (Annexure P3) at Police Station, Rai (Sonepat). During investigation of this Calendera, head Constable summoned the respondentaccused as well. What happened at that time is reproduced in Calendera, Annexure P4. It specifically records a fact that when accused Om Parkash was summoned and he was asked about the incident, he started abusing the petitionerAnil Kumar. Head Constable has recorded that Om Parkash was ready to kill Anil Kumar. He (Head Constable) dissuaded him but despite that he did not listen to him and therefore, finding no other alternative, he recorded the Calendera under Section 107/151 of the Code of Criminal Procedure and ordered them to furnish bond to keep peace and public tranquillity for one year by furnishing security bond in the sum of Rs. 10,000/. This is not a case where only a Calendera was recorded simplicitor. The behaviour of respondentaccused even at the Police Station is apparent from Annxure P4. In this murder case, only two witnesses, the petitioners remain to be examined; the next date of hearing is 20.4.1998.

Considering the above facts, petition is allowed. Bail granted to respondentaccused is hereby cancelled. Petitioners are directed to remain present on 20.4.1998 so that their statements be recorded on this date. The trial Court is hereby directed to record the statements of both these petitioners on 20.4.1998 and after recording the statements of both these witnesses, the respondentaccused be released on bail again if he submits bail bonds to his satisfaction. He is directed to surrender before the trial Court to be taken in custody.

Copy of the order be sent to the trial Court by the registry forthwith.