MANIK CHANDRA Vs. CHANDRA BHUSHAN

JUDGEMENT

(1.) This is complainants application u/s 439(2), Cr.P.C. complaining that the anticipatory bail granted to the non-applicant No.1 by 4th AddI. Sessions Judge Chhatarpuf is wholly unjustified and therefore the prayer is that the same be cancelled.

(2.) From the facts appearing in the charge-sheet, it appears that on 13-11-1989 at 8 a.m. applicant lodged the complaint at police station Maharajpur, Distt. Chhatarpur that he was returning home in the morning from his agricultural field alongwith his brother Dharam. As they reached near the agriculture field of Chourasia, Deoki, Chandra Bhushan, Shanker, Santan, Chandan and Suresh came from the opposite direction. The non applicant Chandra Bhushan was armed with a gun. These persons caught hold of him and his brother. Non-applicant Chandra Bhushan fired his gun from behind his brother Dharam, hitting on his back.. Deoki who was catching hold of him, then told that Matadeen had asked him not to spare anyone and kill everyone and this Chandan took a Deshi Katta from his pocket and fired. He tried to disengage himself and ran away. According to him there is previous enmity between Deoki about some land dispute and he therefore complained that because of that enmity and at the instance of Matadeen, non-applicant No.1 and others have killed his brother. The F.I.R. was lodged within an hour and half of the incident which must be treated to be almost immediately considering the distance of 2 Kms. between the police station and the place of the incident. It appears that the statement of the applicant corroborated his version in the F.I.R. Sushil sb Rampyare and Barelal sb Ganpat both stated that they had seen the two parties at the place of the incident and the non-applicant Chandra Bhushan was armed with a 12- bore gun. They also heard the firing of the gun and subsequently saw the deceased lying on the ground. Munna s/c Govind, Kamlapati s/c Shanker, Han sb Natthu, Dasrath s/c Nandu and Lalaram s/c Laxmi Prasad proved involvement of the non-applicant Chandra Bhushan in the incident. The post-mortem indicated the gun-shot wound on the dead body. On this the investigating officer lodged offences under Sections 147, 148, 149 and 302, IPC on the non-applicant and others. They could arrest Deoki, Shanker, Santa and Suresh, the four co-accused but could not arrest Chandra Bhushan, Chandan and Matadeen. In the charge-sheet file by them on 4-12-1989 these three accused persons were shown as absconding and therefore, the request was made to the Court to proceed declaring them to be absconding.

(3.) It appears that the non-applicant Chandra Bhushan made an application for grant of anticipatory bail in the Court of 4th AddI. Sessions Judge Chhatarpur where it was subject-matter of bail application Nos. 381190. Shri K.P. Tiwari, the Presiding Officer of the Court by his order dated 23-5-1990 rejected the said application on a finding that the evidence collected during the investigation establishes a prime facie case against the non-applicant No.1 which was enough to refuse benefit of anticipatory bail. The learned A.S.I. further observed that it was difficult to believe that the non-applicant No.1 was falsely involved in the case. It was also observed that in a case like murder, anticipatory bail cannot easily be framed. The non-applicant No. 1 does not seem to have thereafter approached this Court for grant of anticipatory bail and decided to evade his arrest inspite of this refusal. The non-applicant No.1 again made an application for grant of anticipatory bail. This application was placed not before Shri K.P. Tiwari who had earlier rejected the application but before Shri L.N. Mishra who must have by then taken over as the 4th AddI. Judge to the Court of Sessions Judge Chhatarpur. Shri Mishra, in his order dated 12-7-1990 reconsidered the matter and condemned the prosecution story because the gun alleged to have been used by the nonapplicant No.1 to commit murder was not seized the post mortem report indicates that the incident did not take place at about 6 a.m. but had taken place at about 2 a.m. and the other accused persons Matadeen and Shankarlal were released on bail and Matadeen had been provided police protection as he has apprehending danger to his life. The learned Judge therefore directed that in case the nonapplicant No.1 is arrested in connection with the aforesaid crime, he would be forthwith released on furnishing bail-bond of Rs. 15,000/-. It is this order which is impugned in this application.