IMPORTANT POINT
In a case of exercise of right of private defence it is immaterial whether the accused was involved in any earlier case for consideration of this bail application.

JUDGMENT

Virendra Saran, J. - Notice of this bail application was given to the Government Advocate on 4.9.1992. This bail application came up before Mr. Justice Kundan Singh on 29.9.1992. It appears that due to some embarrassment he washed his hands of this case and directed that the case be laid before another Hon'ble Judge. On the same date the Hon'ble Acting Chief Justice nominated me by name to hear the bail application. The file was received in my Court on 29.9.1992 after lunch. Mr. G.S. Chaturvedi learned counsel for the applicants informed the Court that he has informed Sri Murlidhar Misra (learned counsel for the complainant) that the bail application will betaken up in my Court on that day. The learned State Counsel had also received his file but since Sri Murlidhar Misra was absent. I directed that the bail application be listed on 14.10.1992 showing the name of Sri Murlidhar Misra as counsel for the complainant. When the case was taken up on 14.10.1992 Sri Murlidhar Misra appeared and informed that this case was again listed before Hon’ble Kundan Singh, J. and that his name was not printed in the cause list of that date. Sri B.K. Pandey, the Deputy Registrar Judicial informed the Court that he had sent a written information through special messenger to Sri Murlidhar Misra on 13.9.1992 that the case will be taken in my Court on 14.10.1992 but Sri Murlidhar Misra refused to acknowledge the receipt. Sri Murlidhar Misra denied the information given by the Deputy Registrar (Judicial) as false. To avoid any grievance to Sri Murlidhar Misra I directed that the case be taken up on 15.10.1992.,

2. I have heard Sri G.S. Chaturvedi learned counsel for the applicants and Sri Murlidhar Misra learned counsel for the complainant and the learned State counsel on 15.10.1992, 16.10.1992, 20.10.1992 and today at great length and have perused the record.

3. There are 28 accused in this case of whom 16 are the applicants in this bail application. All the accused barring stray exceptions belong to the same family. Applicant Nazira. Shabbir, Gulzar and Sattar are sons of Amir Ahmad and are real brothers, Mahmood and Nisar are sons of applicant Nazira, applicants Rafiq, Ashraf, Aslam and Akram are sons of applicant Shabbir, Raizwan is son of applicant of Sattar and applicants Anis and Shakil are sons of applicant Gulzar.

4. So far as deceased Aslam is concerned, the post-mortem report shows that he sustained a single gun shot injury and there was no other injury of any kind on his person. The role assigned to the applicants is that they had attacked the complainant's side with lathis. In this way the applicants are not the author of the injury found on the person of the deceased. It is the case of the prosecution that the two parties were engaged in exchanging blows at the house of Dr. Akhtar (according to the defence case at the house of accused Gulzar) the deceased appeared in order to save and closing no time, he left the spot, in order to rush to the police station. At this stage it is alleged that non applicants Irfan and Fazal chased him to a considerable distance and the site plan shows that when the deceased had covered a distance of 270 paras he was shot by non applicant Irfan. The site plan shows that the deceased first proceeded towards south on the Rasta and then turned towards west and after crossing several houses he was Shot. The spot where the deceased was shot is not even visible from the house of Dr. Akhtar. Whether the shooting by Irfan at the instigation of Fazla was also in the prosecution of the common object of the un-law assembly leaven question mark in my mind. The learned counsel for the applicants has argued that even if we go by the prosecution case, it was the individual act of Irfan and Fazla. In my opinion this matter will have to be decided at the trial after entire evidence is recorded. The fact remains that the cases of the applicants are distinguishable from the cases of Irfan and Fazla.

5. One cannot ove