Hem Raj and others vs State of Haryana

S.S. Sudhalkar, J.

The petitioner are arrested in connection with FIR No. 166 dated 3.4.1996 under section 302/34 of the Indian Penal Code, Police Station Safidon, Distt. Jind, and they have moved this application for being released on bail.

I have heard learned counsel for the petitioners and the learned counsel for the State of Haryana being assisted by the learned counsel for the complainant.

Learned counsel for the petitioners has argued that though the names of the petitioners have been mentioned in the FIR, subsequently the police had submitted a report for discharge of the petitioners. The learned Judicial Magistrate did not discharge the petitioners and, therefore, they are in custody though not guilty of the offence. On these facts, learned counsel for the petitioners argued that the petitioners be released on bail.

The challan has been submitted by the police only against Kala Ram accused. In the order dated 11.6.96 the learned Magistrate has held that under section 209 of the Code of Criminal Procedure, the Magistrate is only to examine the Police report and other documents mentioned in section 207 of the Code and find out whether the facts stated in the report make out an offence triable exclusively by the Court of Sessions and once he reaches the conclusion that the facts alleged in the FIR make out an offence triable exclusively by a court of Sessions he has to do no more and commit the case to the court of Sessions Judge. He has held that the prosecution has sought the discharge of the petitioners/accused on the sole ground that they were not present at the time of alleged occurrence and they were present elsewhere at the relevant time, meaning thereby the prosecution wanted to get them discharged on the ground of alibi. The learned Magistrate has held that this aspect of the matter would be gone into by the Court of Sessions at the time of trial.

The learned Sessions Judge vide his order dated 8.5.1996 has rejected the bail application of the petitioners. A copy of the said order is at annexure P/1. The learned Sessions Judge considered the argument that the case was verified and that the petitioners were found innocent. However, he has held that the FIR shows that all the three petitioners are named therein and they were implicated by the eyewitnesses in their statements under section 161 Cr.P.C. He also considered that the occurrence took place at 8.45 p.m. whereas the FIR was lodged on the same night at 11.15 p.m. He also considered that there are as many as six incised wounds on the dead body of Hemant Kumar and out of these, two injuries were on the chest that is the vital part of the body.

The translated version of the FIR is incorporated in the petition itself. The FIR was registered on the complaint of Prem Nath son of Balaki Ram wherein he has stated that he saw petitioner No. 1 having knife in his hand, petitioner No. 2 was also having a knife in his hand whereas Kala was armed with Neja and petitioner No. 3 was armed with knife and they were giving beating to his younger brother Hemant Kumar.

Learned counsel for the State of Haryana has cited before me the case of Suraj Pal v. State of U.P., 1995 Crl. L.J. 1004. In that case it has been held that the opinion of the prosecution authorities has no relevance in the case and it should not have been placed on the record of the case. At present the question is whether the petitioners should be released on bail or not. Looking to the fact that the investigating authority did not find it proper to challan the petitioner on the ground of alibi, I find that this is a fit case in which the bail can be granted to the petitioners.

In view of the above, the petition is allowed and the petitioners are ordered to be released on bail on their furnishing bail bonds in the sum of Rs. 10,000/ each with one surety each of the like amount to the satisfaction of learned Sub Divisional Judicial Magistrate, Safidon.