Suman Kumar Sah vs State of Bihar and Another

M.L. Visa, J.—The Petitioner has filed this application for cancellation of bail of opposite party No. 2 granted by Incharge, Additional Chief Judicial Magistrate, Naugachia on 8.3.2002 in Naugachia Police Station Case No. 15 of 2002.

The case of Petitioner, in short, is that on 26.1.2002, he lodged a case against opposite party No. 2 by getting his Fardbeyan recorded by police in which he stated that on 26.1.2002 at about 4 P.M. when he had gone to the house of the Petitioner for demanding his due amount, opposite party No. 2 gave him a sum of Rs. 3,000/- out of due amount of Rs. 7,000/-and told him that after half an hour, he would give him a further sum of Rs. 2,000/-. Petitioner, thereafter, remained in the house of opposite party No. 2 and in the meantime, he started counting his money which he had collected from other customers and he had a total sum of Rs. 28,000/-with him. In the meantime, opposite party No. 2 and one unknown assaulted him on his head with Garasa and he became unconscious and after regaining consciousness, when he started fleeing away from there, opposite party No. 2 snatched his money and he, in the injured condition, ran to the clinic of Dr. Mannan where he fell down and became unconscious and when he regained consciousness, he found that he was being treated by Dr. B.P. Singh. According to the Petitioner, a case under Sections 341, 324, 307 read with Section 34, Indian Penal Code was registered against opposite party No. 2 and one unknown and he was examined by Dr. B.P. Singh who found serious injuries over his head (Annexure-2 series) and during investigation, a larger number of witnesses were examined by police who supported the case but opposite party No. 2 moved for bail before the learned Incharge Additional Chief Judicial Magistrate, Naugachia who by his order dated 8.3.2002 granted him bail without properly considering the case of prosecution. According to the Petitioner, the impugned order shows that learned Magistrate exercised his discretionary power in most mechanical way and he granted bail to opposite party No. 2 merely on two grounds that Investigating Officer could not send the case diary and there was no repetition of blow. The Petitioner has prayed for cancellation of bail granted to opposite party No. 2 by Court below.

Opposite party No. 2 has not appeared inspite of the fact that notice to opposite party No. 2 was issued and the service report was received stating therein that opposite party No. 2 refused to accept the notice. From the perusal of impugned order, I find that the impugned order by which opposite party No. 2 has been granted bail clearly shows that photo copy of injury report of Petitioner was produced by the learned Counsel for the Petitioner before the Court below. In the impugned order, it is stated that from the copy of injury report, it appeared that Petitioner has altogether received eight injuries and out of them five were caused by sharp cutting weapon and three were caused by hard and blunt substance. The Court below has further observed that injury report is in absolute contradiction of Fardbeyan because in Fardbeyan, Petitioner has stated about the blow by opposite party No. 2 and one unknown by axe on his head and he did not allege assault on him by any hard and blunt substance and it was also not specified in the Fardbeyan as to who gave the axe blow from behind on him. Considering all these facts as well as the fact that opposite party No. 2 was in custody since 31.1.2002, court below granted bail to opposite party No. 2 by its order dated 8.3.2002. The injury report (Annexure-2 series) shows that Petitioner had sustained five injuries on his head area and all five were incised wounds. In the first information report, Petitioner has clearly stated that opposite party No. 2 and one unknown assaulted him with Garasa on his head from backside. So far the period of custody of opposite party No. 2 is concerned, admittedly, he was in custody since 3111.2002 and on 8.3.2002, lorder granting him bail, was passed. So, in my opinion, the period of custody of opposite party No. 2 was not of such period which could have been a consideration for grant of bail to opposite party No. 2. The reasoning of court below that because in first information report, there was no allegation of repetition of blow does not appear to be convincing because there is direct allegation against opposite party No. 2 that he, alongwith one unknown, assaulted the Petitioner with Garasa on his head from backside and five injuries on head area of Petitioner caused by sharp edged weapon were found.

At present, generally lower courts are not granting bail in cases having such type of allegation supported by injury report. Since bail has already been granted (SIC) opposite party No. 2 and there is no illegation of Petitioner that after grant of all, opposite party No. 2 has in any way (sic)isused the privilege of bail in any manner, I do not think it proper to cancel the bail of opposite party No. 2 already granted (sic) Court below but that this matter must (sic)e placed before the Standing Committee (sic)r showing the nature of order which has been passed by Court below in such type case.

With the aforesaid observation, this plication stands dismissed.