Tarlok Chand Mahajan vs State

S.K. Gupta, J.—This application has been initiated for grant of bail to applicant, Tarlok Chand Mahajan, facing trial for commission of

offence under Sections 302/452 RPC, 3/25 Indian Arms Act, before learned 2nd Additional Sessions Judge, Jammu, being at the stage of

recording prosecution evidence.

The allegations against the accused enumerated from record, are that on 27.9.2000, at Industrial Area Gangyal, the accused with criminal

intention to commit the murder of Rahul Sharma, a disabled person, clandestinely forced his entry into the Factory premises (Olympian Paints) of

Rahul Sharma, with a loaded revolver, dragged him from the office of the factory and fired two rounds on him with the revolver in his possession as

a result of which Rahul Sharma died and further the licence of the revolver used in the commission of offence was not renewed on the date of

commission of offence.

After registration of case under FIR No. 485/2000, police swung into action and on conclusion of the investigation, challan came to be

presented against the applicant-accused before the trial court. The trial court, after hearing the parties and scanning the material available on

record, framed a charge against the accused on 18.5.2001.

Out of total 44 witnesses cited in the challan, nine witnesses have been produced, out of which two have been given up by the prosecution. It is

further disclosed from the record that the prosecution has cited witnesses, namely, Rakesh Kumar, Omkar Singh, Anpuradh Naik and Akshey

Kumar as eye witnesses of the occurrence. Their evidence has also been recorded.

The bail of applicant has been sought on the ground that he has been falsely implicated in the case and the evidence so led by the prosecution,

including the evidence of eye witnesses, did not link the applicant with the commission of the crime. Accused continue in the jail for the last four

years as he had surrendered to the custody of Police in October, 2000. It is also stated that during the period of more than three years, after

framing of the charge, the prosecution has not exhausted the list of 44 witnesses despite fixation of more than 37 calendars. The long incarceration

on account of protracted trial has affected the applicant, both mentally and physically, in violation of his right to life and liberty enshrined in Article

21 of the Constitution.

In contesting the bail application, Mr. B.S. Salathia, learned AAG, had laid his thrust mainly on the ground that the accused-applicant is involved

in a serious offence of murder providing imprisonment for life or death penalty in case of conviction. His further submission is that there are yet

many material witnesses to be examined in the case though not seriously disputing the nature of evidence tendered by the witnesses already

produced by the prosecution, including the eye witnesses. Mr. Salathia further submitted that the accused-applicant, in case of his release on bail,

is likely to prevail upon the witnesses and temper the material evidence. He also stated that possibility of the accused to jump the bail also cannot

be ruled out on account of enormity of punishment for the commission of offence u/s 302 RPC.

I have heard the learned Counsel for the parties, considered the rival contentions of the parties in context with the material on record and also

relevant provisions of law touching the controversy.

Mr. S.K. Anand, learned Counsel appearing for the applicant-accused, at the out set submitted that the evidence so far produced by the

prosecution, including the eye witnesses, is too refined and feeble to justify further custody of the applicant-accused in the case. Mr. Anand further

carried me through the evidence of eye witnesses, namely, Rakesh Kumar, Anpuradh Naik, Akshey Kumar and Omkar Singh, from the record of

the trial court and witnesses who have been declared hostile when did not depose on the dictation of the prosecution. His further submission is that

none of the witnesses have supported the prosecution case so as to involve the applicant-accused with the commission of the offence. According

to Mr. Anand, it was a fit case where the court should have exercised its powers u/s 498 Cr.P.C, which, he added, were very wide.

It is settled proposition of law that real question is whether there are reasonable grounds for believing that a person is guilty of offence depends

upon what evidence is offered by the prosecution to prove the charge against him. While reaching such a conclusion, the court must consider the

nature and character of evidence against him. Reliance is placed on Dharmendra Chandulal Patel Vs. State of Gujarat, .

Dilating upon the argument of Mr. S.K. Anand, learned Counsel for the applicant-accused, by referring to the evidence on record and its

nature, character and quality, I find substance and merit in his submission. The applicant-accused is already in incarceration for a long period of

more than three years. I, however, refrain from expressing any comments on the merits of the contentions raised by Mr. Anand, with regard to the

nature and quality of the evidence so far brought on record.

However, without prejudice to the aforesaid contentions, I allow this application and order the applicant-accused to be released on bail,

provided he furnishes bail bond in the amount of Rs. 20,000/-, spreading over to two sureties of identical engagement each, to the satisfaction of

the trial court. The bail is, however, granted subject to the conditions that, accused-applicant shall not leave the territorial jurisdiction of the trial

court, without prior permission and refrain from coming into contact with the witnesses cited in the challan or make any endeavor/attempt to prevail

upon them. In case of breach of any of such conditions, the prosecution shall be at liberty to approach the trial court for appropriate remedy

available under law.