IMPORTANT POINT
Where accused committed double murder by gun shots and they were named in FIR, lodged without delay on statement of an eye witness, circumstances would not justify for grant of bail.

JUDGMENT

G.P. Mathur, J.-Leave granted.

2. This appeal, by special leave, has been preferred by the complainant, Sompal Singh (first informant) against the judgment and order dated 27.5.2004 of Allahabad High Court by which Sunil Rathi (respondent No.1) has been granted bail in a case under Section 147/148/149/302/307/404/504 and 506 IPC.

3. Sunil Rathi had been initially granted bail by the High Court on 30.5.2003. This order was challenged by the complainant Sompal Singh by filing Special Leave Petition (Crl.) No. 2551 of 2003. The appeal was disposed of by this Court on 6.1.2004 and the relevant portion of the order is being reproduced below:

"Having heard the learned counsel for the parties, we are satisfied that the disposal of the prayer for bail cannot be termed satisfactory. At least three flaws are apparent: (i) The fact that the accused is named in the F.I.R., (ii) the fact that the accused had several other accusations to his credit; and (iii) the fact that the co-accused was denied bail, have not received consideration at the hands of the High Court."

The order dated 30.5.2003 was accordingly set aside and the bail application filed by respondent No.1 was directed to be considered afresh by the High Court after affording the complainant and the State an opportunity of hearing.

Thereafter, the bail application was again heard by the same learned Judge and the accused was granted bail by the order dated 27.5.2004 which is the subject matter of challenge in the present appeal.

4. According to the case of the prosecution, the incident took place at about 7.00 a.m. on 21.6.2001 when Sunil Rathi (respondent No.1), his brother Arvind, Vikram, Virender @ Kalu, Shyambir, and Pramendra along with 3-4 other persons came and resorted to firing by pistols and stenguns upon Mahak Singh and Mohkam Singh while they were sitting on the chabutara of the baithak of Mohkam Singh. Mahak Singh and Mohkam Singh received several gun shot injuries and died on the spot. Vedu and Vipin Kumar son of Mahendra Harijan were also injured. An FIR of the incident was lodged by Sompal Singh, brother of deceased Mahak Singh shortly thereafter at 8.00 a.m. at Police Station Doghat, which is 5 kms. away from the place of occurrence. The autopsy on the body of Mahak Singh was performed at 5.15 p.m. on the same day and the doctor found eight gun shot injuries on his person including five entry wounds and five exit wounds on the chest. The autopsy on the body of Mohkam Singh was performed at 6.15 p.m. and gun shot injuries were found on his body. The two injured, namely, Vedu and Vipin Kumar were medically examined at 9.30 a.m. at Primary Health Centre, Baraut and they were found to have sustained gun shot injuries.

5. According to the case of the prosecution, Sunil Rathi, respondent No.1 had a strong motive to commit the crime on account of some election dispute and earlier criminal cases. The incident was witnessed by Sompal Singh, Vikram (brother of deceased Mohkam Singh) and some others. The FIR was promptly lodged naming respondent No.1 and assigning a specific role to him of shooting by a fire arm. The prosecution version of the incident finds complete corroboration from medical evidence. The bodies of the two victims were found on the Chabutra and blood was also found there. The bail application of co-accused Virender @ Kalu had already been rejected by another learned Judge of the High Court. The respondent No.1 was involved in several criminal cases. In such circumstances, we do not find any justification at all for grant of bail to him.

6. After the earlier order granting bail had been set aside by this Court, a fresh bail application was filed in the High Court on 27.2.2004, which came up for hearing on 1.3.2004 before another learned Judge who had been assigned the jurisdiction. For reasons which are not clear from record, an order was passed by him to list the bail application before the same learned Judge who had granted bail on the earlier occasion