Uttam Agarwal vs State of Chhattisgarh

Satish K. Agnihotri, J.—This is the second bail application filed u/s 439 of the Code of Criminal Procedure (for short "the Cr.P.C.") for grant of regular bail to the applicant, who has been arrested in connection with Crime No 124/2009 registered at Police Station Shankargarh, District Sarguja, for the offence punishable under Sections 364, 302 and 120B of the Indian Penal Code.

The prosecution case, in brief, is that Omprakash Yadav (since deceased) was the Up-Sarpanch of Gram Panchayat, Kotli. On account of political rivalry, the applicant as well as co-accused Rameshwar Uraon met with some naxalities, contacted them over phone and by hatching up criminal conspiracy on 13.12.2009 the co-accused called the deceased to Parasatoli, Kotli, for collecting rice where the accused persons executed the conspiracy and got the murder of the deceased committed with the help of sharp edged axe.

Shri Surendra Singh, learned senior counsel appearing with Shri Neeraj Mehta & Shri D.L. Dewangan, learned counsel for the applicant would submit that there is no direct allegation against the present applicant for committing the murder of the deceased. In fact, the applicant has not committed any crime in question and he has been falsely implicated. No substantial material has been collected by the police against the applicant and he has been implicated in the instant crime only on the basis of memorandum of co-accused.

Shri Singh would further submit that out of 38 prosecution witnesses, 13 prosecution witnesses have been examined. There is no iota of evidence to prove that the applicant has committed the crime in question. There was no Test Identification Parade (TIP). Even otherwise, the prosecution witnesses examined, so far have failed to identify the person who had allegedly committed the murder of the deceased and, as such, there is no question of any link between the present applicant and the person who had committed the alleged crime in question. Shri Singh would also submit that conclusion of the trial would take some more time, therefore, the applicant may be extended the benefit of Section 439 of the Cr.P.C. and he may be released on regular bail.

In support of his contention Shri Singh, learned senior counsel placed reliance upon the decisions of the Supreme Court in Prabhu Vs. State of U.P., , and Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra,

On the other hand, Shri Roy, learned Panel Lawyer appearing for the State, would submit that the contention urged by the applicant can be considered only at the stage of trial and the same is not relevant for grant of bail under the provisions of Section 439 of the Cr.P.C. Shri Roy would further submit that, this being a second bail application, there is no substantial change in the facts and circumstances of the case. The applicant being an influential person may influence the remaining witnesses, thus the present bail application may be rejected.

I have heard learned counsel appearing for the parties and perused the case diary.

Reliance of the learned senior counsel appearing for the applicant upon the decisions of the Supreme Court in Prabhoo and Yogesh @ Sachin Jagdish Joshi may be relevant for consideration of the case during trial or thereafter on merits, but the same are not relevant in case of bail application, where the Court need not examine the case on merits.

In Satish Jaggi Vs. State of Chhattisgarh and Others, the Supreme Court held as under:

12....The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the Court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial.

In Narayan Ghosh @ Nantu Vs. State of Orissa, the Supreme Court held as under:

11.... There is no dispute about the principles stated in the ruling, however, we do not think that it would be proper for us to discuss at this juncture about prima facie finding. In our opinion it would be for the trial Court to consider and appreciate the evidence which comes before it in support of the plea of conspiracy and to arrive at the correct finding. We will not, at this stage, comment upon the nature of the evidence one way or the other. In that view of the matter we do not think that the High Court was in error in refusing the bail to the appellants.

The Supreme Court in Lokesh Singh Vs. State of U.P. and Another, held as under:

While dealing with an application for bail, there is a need to indicate in the order, reasons for prima facie concluding while bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are:

The nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence

Reasonable apprehension of tampering of witness or apprehension of threat to the complainant.

Prima facie satisfaction of the Court in support of the charge.

Applying the well-settled principles of law for consideration of bail application and otherwise there are serious allegations leveled against the applicant, further out of 38 prosecution witnesses, 13 prosecution witnesses have been examined, thus no conclusion can be reached on the basis of depositions of 13 prosecution witnesses. There is also reasonable apprehension of tampering of witnesses, as the applicant is an influential person of the area. In view of the allegations made against the applicant, this Court is not satisfied with the contention of the learned senior counsel appearing for the applicant to enlarge the applicant on bail at this stage.

Having regard to the facts and circumstances of the case and further considering the fact that the first bail application was rejected by this Court on merits by order dated 27.8.2010 after appreciating ail the aspects of the case, I am not inclined to grant regular bail to the applicant.

For the foregoing reasons, the bail application is liable to be and is hereby dismissed.