Nachhattar Kaur vs State of Punjab and ors.

A.S. Nehra, J.

Nachhattar Kaur petitioner, widow of Dev Singh deceased, has filed this petition under section 439(2) of the Code of Criminal Procedure for setting aside the order dated 1591992 by which Harnek Singh and Sakinder Singh (respondents), sons of the deceased, have been granted bail in case registered, vide FIR No. 36 dated 30592 under Sections 302/34 of the Indian Penal Code, at Police Station Sherpur (District Sangrur).

Mr. T.S. Sangha, Advocate, counsel for the petitioner, has contended that Sakinder Singh respondent gave a kahi blow to Dev Singh. Dev Singh raised his left arm and the blow hit his left hand and that Harnek Singh respondent also gave gandasa blow on the left arm of Dev Singh and Dev Singh fell down. It is further stated in the FIR that Harnek Singh and Sakinder Singh went on giving blows to Dev Singh on his arms and legs with their gandasa and kahi in an indiscriminate manner when he was lying fallen down on the ground; that there are 11 incised wounds and 15 lacerated wounds on the person of the deceased and that the allegations contained in the FIR are fully borne out from the medical evidence. The learned Additional Sessions Judge, Sangrur, has observed:

"Since there is no explanation for as many as 15 injuries received by the deceased, before his death, which had been caused by blunt weapon or weapons. I am of the opinion that applicants be granted the concession of bail at this state."

The learned counsel for the petitioner has contended that the observations made by the learned Additional Sessions Judge are incorrect; that gandasa and kahi have been used from sharp and blunt sides; that the complainant has stated in the FIR that the accused/respondents went on giving blows to Dev Singh on his legs and arms in an indiscriminate manner; and that, therefore, the learned Additional Sessions Judge has allowed bail on flimsy and factually incorrect grounds. The order is perverse. In support of his argument, he has relied upon The State v. Captain Jagjit Singh, AIR 1962 SC 253.

It was held by the Supreme Court in Captain Jagjit Singh''s case (supra) that, in these circumstances, considering the nature of the offence it seems that this is not a case where discretion, which undoubtedly vests in the Court under Section 498 (482 ?) of the Code of Criminal Procedure, should have been exercised in favour of the respondents. It was further held that the order passed by the High Court granting bail to the respondents is erroneous and should be set aside. The Rajasthan High Court in Immamuddin v. Ayub Khan and others, 1984 Criminal Law Journal 117 held that ordinarily the High Court will not exercise its jurisdiction under section 439(2) of the Code of Criminal Procedure by cancelling a bail granted by the Sessions Judge in favour of an accused but, if the bail has been granted to an accused in a nonbailable offence punishable with death or imprisonment for life in a manner which smacks of arbitrariness, capriciousness or perversity on the part of the Court of Session granting such bail, the High Court has not merely the discretion but a duty laid on it under Section 439(2) of the Code of Criminal Procedure to cancel the bail and order the accused to be rearrested.

Mr. B.S. Bhasaur, Advocate, learned counsel for respondent No. 2, has contended that the bail granted to the respondents be not cancelled because there is no allegation in the FIR that any blunt weapon was used by respondent No. 2. In support of his argument, he has relied upon The State through the Delhi Administration v. Sanjay Gandhi, AIR 1978 Supreme Court 961. Nachhattar Kaur petitioner has stated in the FIR that the respondents went on giving blows to Dev Singh on his arms and legs with their gandasa and Kahi in an indiscriminate manner. The allegations contained in the FIR are fully borne out from the medical evidence. There are about 11 incised wounds and 15 lacerated wounds on the person of the deceased. Gandasa and kahi have been used from sharp and blunt sides. There are 15 injuries on legs and arms. The observations made by the learned Additional Sessins Judge, while granting bail to Harnek Singh and Sakinder Singh, are factually incorrect. Sanjay Gandhi''s case (supra), relied upon by the counsel for respondent No. 2; isnot applicable to the facts of the case. Mrs. Vijay Kanta Singla, Advocate, counsel for respondent No. 3, has also contended that respondent No. 3 has been granted bail and this is not a fit case in which the bail should be cancelled by this Court.

After hearing the learned counsel for the parties, I am of the opinion that the learned Additional Sessions Judge has erred in law in granging bail to Harnek Singh and Sakinder Singh, accused respondents. Specific allegations have been levelled against them and they had caused 11 incised wound and 15 lacerated wounds on the person of the deceased who was their father.

For the reasons recorded above, this petition is allowed. The bail granted by the Additional Sessions Judge, Sangrur, vide his order dated 1591992 is hereby cancelled. Nonbailable warrants of arrest be issued and respondents Nos. 2 and 3 be sent to judicial lockup to stand their trial.