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High Court Of Madhya Pradesh
S. L. KOCHAR
STATE OF M.P. - Appellant
Versus
DEEPAK SHARMA - Respondents
CRIMINAL REVISION 681 Of 2002
Decided On : 01/27/2003
grant of bail - Criminal Law - Sections 397, 439/493 (2) of the IPC, Section 30 of the Arms Act - The court discussed the provisions under Section 439, Cr. P. C. and highlighted the nature and gravity of the circumstances in which the offence is committed, the position and the status of the accused with reference to the victim and the witnesses, the likelihood of the accused fleeing from justice, and the history of the case as relevant grounds for granting bail. The court emphasized that the unfettered powers under Section 439 (1), Cr. P. C. are required to be exercised judicially and not arbitrarily, and cited relevant case laws to support the decision to cancel the bail granted to the accused.
Fact of the Case:
The accused, Deepak, was granted bail by the trial Court despite being specifically mentioned in the FIR as the user of a firearm causing injury to the deceased. The court took suo-motu action against the grant of bail and discussed the circumstances of the incident as mentioned in the charge sheet and the order of grant of bail by the trial Court.
Finding of the Court:
The court found that the grant of bail to the accused was contrary to the principles of law of grant of bail in a case punishable with death or life imprisonment, and emphasized the need for judicial discretion in considering the question of granting bail. The court also highlighted the retraction of statements by witnesses and the improper exercise of judicial discretion by the trial Court in granting bail.
Issues: The issues revolved around the grant of bail to the accused despite being specifically mentioned in the FIR as the user of a firearm causing injury to the deceased, the exercise of judicial discretion in granting bail, and the retraction of statements by witnesses.
Ratio Decidendi: The court emphasized the need for judicial discretion in considering the question of granting bail, highlighted the nature and gravity of the circumstances in which the offence is committed, and discussed the retraction of statements by witnesses as relevant grounds for canceling the bail granted to the accused.
Final Decision: The court canceled the bail granted to the accused and directed him to surrender forthwith before the trial Court.
( 1 ) THIS order also governs disposal of MCrc No. 3661/02; State of M. P. v. Deepak S/o Mahesh Sharma.
( 2 ) IN an application for grant of bail filed by co-accused Mukhtyar vide MCrc No. 3375/02 it was argued on behalf of the accused that main accused non-applicant Deepak, causing fire arm injury to the deceased, has been released on bail by I Additional Sessions Judge, Badwah by order dated 24-9-2002. Certified copy of this order was also filed, whereas bail application of co-accused Mukhtyar was rejected prior to 25-9-1992. Though against him there was no allegation for causing injury to the deceased or even taking direct or indirect part in the incident of murder. He was a gun man duly appointed by the owner of Petrol Pump for security purpose, where deceased Dilip and non applicant Deepak were sitting. Accused Deepak in absence of co-accused Mukhtyar used the gun for commission of murder of Dilip. Against Mukhtyar charge was only under Section 30 of the Arms Act. While deciding the bail application of co-accused Mukhtyar, this Court has taken suo-motu action as per Provision under Sections 397, 439/493 (2) of the IPC against grant of bail to Non-applicant Deepak vide MCrc No. 3661/02.
( 3 ) IN nut shell, prosecution case as mentioned in the order of grant of bail by the trial Court to Non applicant as well as in the charge sheet, is that deceased Dilip was sitting on the cot at Punjab Petrol Pump, Narmada Road in the night at about 11. 25 p. m. on 30th May, 2002. At that juncture, non-applicant Deepak also came over there and sat on a chair with another employee Mukesh. Bhuresingh asked other employee Gajendra to fetch the water, who came and kept 12 bore gun by the side of the cot and went to the office of Petrol Pump to fetch water. In the meanwhile, power supply was started and therefore, Mukesh went to switch off the generator. During this period, deceased Dilip and non applicant Deepak had some sort of altercation. Non applicant Deepak took 12 bore gun and fired at Dilip on his chest as a result of which Dilip fell down and became unconscious. All the employees rushed towards there and took Dilip to hospital where he was declared dead. The incident was witnessed by the employees of the Petrol Pump. FIR was lodged by Manager Bhuresingh immediately.
( 4 ) THE name of non-applicant Deepak is specifically mentioned in the FIR as user of fire arm causing injury to Dilip on the chest of deceased. The averment in FIR as well as statements of eye-witnesses were duly supported by the medical report. Prior to grant of bail to non-applicant, the same Court had refused regular bail to co-accused Mukhtyar against whom there was no allegation for taking direct or indirect part in the incident but he was roped into the crime with the help of Section 30 of the Arms Act. Learned trial Court has granted bail to non-applicant Deepak on the ground that investigation was complete and the charge sheet was filed. Applicant was not required for any seizure of incriminating article. He was in jail since last about 3 months and the trial may take time for its conclusion. Relevant portion of the order is reproduced hereinbelow :
( 5 ) HAVING heard learned counsel for the parties and after perusing the entire record, this Court is of the opinion that the Provisions under Section 439, Cr. P. C. are to be considered along with Section 437, Cr. P. C. Section 437 (1) reads as under :- 437. When bail may be taken in case of non-bailable offence- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court ofsession, he may be released on bail but- (I) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. (II) such person shall not
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