BALDEV SINGH Vs. DURGA PRASAD

JUDGEMENT

(1.) This petition has been filed by Baldev Singh who is one of the complainants in the case registered vide FIR No. 441 of 1987 under Section 302 read with Section 34, Indian Penal Code . The prosecution version in brief is that all the accused persons namely, Durga Prasad, Faqir Chand, Jagdish alias Kalia, Nirmal Sinah alias Gauria, Hira Lal had picked up and dragged Bhagwant Singh inside the katra and struck him with bricks. It is al leged tliat Ram Swarup and Hira Lal pinned him down on the ground while Jagdish hit him with a brick and Durga Prasad andFaqira climbed up the roof of the house shouting that Bhagwent Singh be finished and thereafter accused Faqira and Durga Prasad threw the brick wall on Bhagvvaiit Singh who succumbed to his infuries. A charpoi is also stated to have been hit on Bhagwant Singh's chest. Bhagwant Singh is stated to have suffered 15 injuries on his person.

(2.) Faqir Chand and Durga Prasiid during the investigation have ipoved bail applications in the Court of Sessions. The samv were rejected vide order dated November 2, 19S7 and November 7, 1987 respectively Durga Prasad thereafter moved an application for grant of bail in High Court which was registered as Ci-l. Misc (M) 762 of 1988 and which came to be dismissed on .July 4. 1988 on merits. Thereafter Durga Prasad moved a bail application dated July 22. 1988 through In's wife Shaino Devi before the trial Court as in the meanwhile the case has been committed for trial to the Sessions. Faqir Chand also had moved an application for bail before Shri K.P. Verma, Additional Sessions Judge on July 18, 1988. It is alleged that the application Faqii Chand was moved by Shri P. P. Grover, Advocate and the application moved on behalf of the Durga Prasad by his wife was moved by Shri Ajay Kumar and Rakssh who are juniors to Shri P. P. Grover, Advocate, Vide order dated August 4, 1988 line Additional Sessions Judge granted bail to Durga Prasad and vide order dated July 18, 1988 the same Court granted bail to Faqir Chand. In this petition seeking cancellation of the bails ranted to the said two accused, it has been averred that Faqir Chand in his appplication for bail dated July 18, 1988 had wrongly mentioned in Para 7 that his previous application for hail was dismissed as withdrawn and he had concealed the materal fact from the Court of Additional Sessions Judge that hi" bail application on merits had been dismissed vide order dated November 2, 1987. It has been pleaded that no fresh grounds have been mentioned in the bail application which ould entitied them to get bail from the Additional Sessions Judge. It has been strongly urged that a fraud has been practised on the trial Court by not disclosing in the bail applica''ions of Faqir Chand and Durga Prasad that their previous bail applications have been dismissed on merits and the application of Durga Prasad had also been dismissed by the High Court. The complainant had moved an application before the Additional Sessions Judge also pointing out these facts seeking the order for cancelling the bail of the said two accused but the Additional Sessions Judge vide his impugned order dated September 7, 1988 had dismissed the application although he had mentioned in the order that if the occused bad disclosed in the anplication regarding dismissal of their applications on merits earlier, lie might have exercised his discretion in a different way but he, following the judgement of the High Court in K. K. Girdhar Vs. M.S. Kafhuria 35(1988), D.L.T. 392(1) dismissed the application. In the cited case. it was found that the fact of an earlier bail application having been dismissed on merits by the High Court was concealed in the subsequent application seeking bail from the trial Court yet it was held that it could happen that the accused in his anxiety to be released on bail just instructed his counsel to move a bail application on his behalf without furnishing information in the said regard, namely, about the fact of his earlier application for bail having been dismissed by the Sessions Judge. It was also mentioned in that earlier bail application was moved hv the accused through some other advocate. It was held that no fraud could he deemed to have been practised in such circumstances and the High Court refused to cancel the hail or this round. However in Sanjiv Kumar Versus State; Cil. Misc (M) No 475/ 82 and is practised by concealing the fate of previous bail application then the order granting the bail is liable to be cancelled. A Special Leave Petition No. 1501-02 of 19^8 was filed in the Hon'ble Supreme Court which came to be dismissed in limins by '.he Hwn' ble Supreme Court vide order dated July 7, 1988. A similar question also cropped up for decision in Smt. Frazana Versus State; Cri. Misc. (M) No. 527 of 1988(3.) and Malik Sharief-Ud-Din, J. held that in such circumstances bail has to be cancelled and made following observations :-

(3.) The learned counsel for the respondents has however argued vehemently that once a bail has been granted to an accused, the same cannot be cancelled except for some changed circumstances showing that the accused on bail is likely to temper with the evidence or therwise has misused his facility of bail. He has argued that there is no such rule or law which rcquires that in the applications seeking bail, it must be mentioned as to what has transpired in any previous bail application. He has urged that bail applications are not decided ex parte and notices are always given to the State and in the present cases also the bail applications were decided after hearing the State and the State could have fully brought to the notice of the Court concerned regarding the fate of the earlier bail applications. He has urged that there has been no fraud practised on the Court by mere omission to mention the fate of the earlier bail applications in the fresh application for bail.