Rakesh Kumar vs State

B.P. Singh, J.—This is a second bail application on behalf of Rakesh Kumar.

Rakesh Kumar, who is being prosecuted in Crime No. 109/91 under Sections 364/302/201 IPC P.S. Banda district Shahjahanpur, has applied for bail.

The case of the prosecution is that deceased Vishnu Dutt Agnihotri and Jaswant Rai were real brothers. The applicant Rakesh Kumar is the son of Jaswant Rai while Km. Kanu Priya, the first informant, is the daughter of Vishnu Dutt Agnihotri Both families reside in village Dundawa Pipariya.

On 28-5-1991 at 12.30 P.M. an FIR was lodged by Km. Kanu Priya in P.S. Banda with the allegation that on 27-5-1991 at about 8 P.M. applicant Rakesh Kumar had kidnapped deceased Vishnu Dutt Agnihotri and Avinash from their house in presence of Km. Kanu and one other relation (the name of this relation was disclosed by Km. Kanu Priya during the course of investigation).

Rakesh Kumar alongwith some other persons had come in a deep and had taken both Vishnu Dutt Agnihotri and Avinash by using force. Km. Kanu Priya could do nothing. She waited in the night and on the next morning she was informed that her father and cousin Avinash were murdered and dead bodies were lying in the jungle of village Gulariya,

A case under Sections 364/302/201 IPC was registered on the basis of this FIR. Police went into action and proceeded to the place of occurrence. During the course of investigation, the Police recorded the statement of one witness Ram Pal Singh who had claimed to have seen both the deceased in the company of Rakesh Kumar just before the fatal shots killing the two deceased were fired.

An application for bail on behalf of Rakesh Kumar was moved in the court of Sessions Judge, Shahjahanpur, it was rejected on 6-8-1991.

I have heard the learned Counsel for the applicant Shri P.N. Misra and Shri P.N. Lal learned Assistant Government Advocate and Shri V.C. Tiwary, learned Counsel for the complainant. Various affidavits, counter affidavits and rejoinder affidavits have been exchanged. Various points have been raised by the parties counsel during the course of arguments.

It is no doubt true that the concept of pre-trial punishment is foriegn to Indian Legal jurisprudence, but the concept of pretrial detention has statutory recogniton When the offences were divided into two categories i.e. bailable and non-bailable, the Parliament was alive of the situation that an accused chaired with non-bailable offence did not have right of bail and it was left to the discretion of the Court to grant bail to persons who were facing trial of non-bailable offences. The general principles regarding the grant of bail to persons charged with heinous crime were the subject matter of discussion in the case of Ngangom Iboton Singh and Another Vs. Union Territory of Manipur, In the above cited case, it was observed as follows:

The learned Counsel of the Petitioners urged vehemently that both the Petitioners are entitled to be released on bail and relied on a number of decisions, which lay down the principles which should guide the Court in dealing with an application for bail. One of the principles is that generally it is the rule to allow bail, rather than to refuse bail and bail ought not to be held as punishment.

Vide Nagendra Nath Chakrabarthi Vs. King-Emperor, , Emperor v. Gulam Mohammad AIR 1925 Lah 510 , and Ram Chandra and Another Vs. The State, . In Sant Ram and Others Vs. State, it was held that the law presumes an accused person to be innocent till his guilt is proved and that he should be allowed opportunity to look after his own case, unless the circumstances are such that he should not be released on bail.

In Ram Chand v. Emperor 30 CriLJ 1129 : AIR 1929 Lah 284, Kripa Shankar Vs. Emperor, , Champalal v. State AIR 1952 M P189 and The State v. Shantilal AIR 1955 Raj 141 , it was held that the High Court can exercise its powers u/s 498, Code of Criminal Procedure uncontrolled by the restrictions mentioned in Section 497 Code of Criminal Procedure. But, it was also held that the High Court should exercise its powers u/s 498 Code of Criminal Procedure judicially and not arbitrarily. There are some rulings which held that the fact that an offence is a serious one does not afford a suffieient ground to refuse bail. Vide AIR 1925 489 (Oudh) and Fazal Nawaz Jung and Another Vs. State of Hyderabad, .

It was held in some others that the principles to guide the Court is the probability of the accused appearing to take his trial and not his sup -posed guilt or innocenceVide Public Prosecutor Vs. M. Sanyasayya Naidu and Others, and Rao Harnarain Singh Sheoji Singh and Others Vs. The State, . In Paras Ram Vs. The State, it was held that there is no hard and fast rule as to when bail should be granted and that though the discretion of the High Court is unfettered it must be exercised judicially.

Again in the case of Gurcharan Singh and Others Vs. State (Delhi Administration), , the Supreme Court has observed:

The overriding considerations in granting bail to which we adverted to earlier and which are common both is the case of Section 437(1) and Section 439(1), Code of Criminal Procedure of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses, the likelihood of the accused fleeing from justice; of repeating the offence: af jeopardising his own life being faced with a grip prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out.

Keeping in view the above cited observations of the Supreme Court, I may now deal with the salient points of the prosecution case. I make it clear that no adverse inference is to be drawn from the observations which are being made for the purposes of the disposal of the bail application, and the trial court in no way shall go by these observations at the trial.

It is no doubt true that the FIR was lodged after about 16 hours of the occurrence in which the two deceased were abducted, it is also not disputed that the name of the second witness, who was claimed to be a witness by the first Informant, was not mentioned in the FIR. It is also not disputed that Ram Pal Singh the only witness who had seen the deceased in the company of the applicant Rakesh Kumar shortly before the fatal shots were fired by him has filed his affidavits in the trial court In one affidavit he has claimed to be the witneses of the said occurrence while in the second affidavit he has claimed that he was not a witness. It is also not disputed that relations between the two families were anything but strained and criminal cases were pending against the applicant from before the occurrence of this case; it is also not disputed that the deceased had moved an application in which he had alleged that he apprehended danger from applicant Rakesh Kumar it is also not disputed that Rakesh Kumar is a practising Advocate in Shahjahanpur and his family owns considerable landed property in Shahjahanpur; it is also not disputed that charge-sheet in the case was submitted on 11-8-1991 and the trial has not commenced as yet

It was also contended from the side of the complainant that in case the applicant was released on bail, he would only tamper with the evidence in the case but would liquidate the entire family of Km. Kanu Priya in which there was no male member. On the other hand, learned Counsel for the applicant has contended that the applicant''s father and brother are still free and if they bad any intention to take steps for causing harm to Km. Kanu Priya and her family, there was no obstacle in the way.

Having considered all these facts and circumstances of the case, I am of the view that where the trial has not started even after one year of the submission of the charge-sheet, where the applicant was practising Advocate and when his family owns considerable landed property, when it was obvious that applicant had roots in the society and there was no immediate danger of of his absconding, when one of the main witnesses for the prosecution has filed affidavits in which conflicting stands were taken by him, when one of the main witnesses of abduction was not named in the FIR, when there was some delay in the lodging of the FIR, a case for bail was made out. However, so far as the fear of the complainant that Rakesh Kumar if released on bail, will tamper with the evidence, proper conditions can be imposed and regarding the fear of liquidation of Km. Kanu Priya''s family, she is free to approach the district authorities for her safety.

Let the applicant Rakesh Kumar involved in Crime No. 109/91 under Sections 364/302/201 IPC P.S. Banda district Shahajabanpur be released on bail provided he furnishes two sureties and a personal bond to the satisfaction of CJM Shahjahanpur. However, it is made clear that during the course of trial, the applicant shall remain in Shahajahanpur City and will not visit village Dundawa Pipariya and on every alternate day he shall report to S.O. Kotwali, Shahjahanpur to make sure his presence in Shahjahanpur. In case this condition is violated, the learned Sessions Judge shall be free to cancel his bail if the violation of the condition is proved to his satisfaction.