MUBARIK KHAN Vs. NASIR KHAN

JUDGEMENT

(1.) In this application preferred under Section 439(2) of the Code of Criminal Procedure, the petitioner has prayed for cancellation of order granting bail in favour of non-applicants 1 to 4 by the learned Additional Sessions Judge, Chhindwara, in Bail Application Nos. 785/97, 907/97, 940/97 and 947/97.

(2.) The facts, as have been unfurled, are thus : On the basis of the F.I.R. lodged by the informant Crime No. 175/97 was instituted for offences punishable under Sections 147, 148, 302 and 149, IPC against the accused, non-applicants 1 to 4, along with other accused persons, for assaulting one Habibullah who succumbed to the injuries sustained by him. According to the prosecution, a 2nd dispute between Habibullah and Nasir, Muselman, was going on for a considerable length of time and certain litigations had already cropped up. On the date of occurrence i.e. 9-6-97, at about 1 P.M., non-applicants 1 to 4 along with some other accused persons with an intention to plough the disputed land, arrived with a tractor and other agricultural implements. It was objected to by Nasir, but his protest was not paid heed to. Nasir went back to his village and returned with others for restraining the accused persons from plaughing the field. This gave rise to a fight in which Ramjan was injured. Deceased Habibullah intervened to rescue the injured person, but he was assaulted whereby he sustained injuries and ultimately succumbed to the same. After the Criminal machinery was not in motion, the accused-non-applicants 1 to 4 were apprehended and taken to custody. They filed applications for grant of bail before the learned Additional Sessions Judge, Chhindwara. The said applications were objected to by the Public Prosecutor as well as by the present petitioner. It was brought to the notice of the learned Additional Sessions Judge that the other accused persons, who had not been arrested, were terrorising the witnesses and all the accused persons had criminal antecedents and, therefore, they should not be enlarged on bail. It was also pointed out that if they would be released on bail, there was every possibility of their tampering with the witnesses. It was also high-lighted that their release would put the fair trial in jeopardy and defeat the course of justice. In spite of the objection, as the order granting bail was passed, the present petitioner has invoked the jurisdiction of this Court u/S. 439(2) Cr. P.C.

(3.) Shri Y. P. Sharma, learned counsel for the petitioner, assailing the impugned order, has contended that the learned trial Judge has failed to exercise his discretion while enlarging the non-applicants 1 to 4 on bail as he has not taken into consideration the serious allegations against them, and the effect and impact of their release on bail. It is also submitted by him that after their release, they are tampering with the evidence by threatening the witnesses. It is contended that as they have betrayed the trust reposed in them and misused the liberty granted to them, there is justificable ground to curtail their liberty. Controverting the aforesaid submissions, Shri. S. L. Kocher, learned counsel for non-applicants 1 to 4, has contended that there is no infirmity in the order passed by the learned Additional Sessions Judge in releasing the present accused persons on bail and the discretion used does not exhibit perversity of approach is appreciating the allegations as well as the obtaining factual matrix. It is also contended by him that after their release, they have not abused their liberty and in absence of specific instances brought on record to substantiate the allegations that there has been tampering of prosecution witnesses, there could be no order for curtailment of liberty and the accused persons would not be lable to forfeit the privilege of bail. Mr. S. K. Gangrade, learned Panal Lawyer, for the State, appearing for the State non-applicant No. 5, has fairly submitted that the State has not preferred any application for cancellation of the order granting bail. He has also admitted that except the comunication made by one Mubarik Khan on 18-7-97 to the Town Inspector of Police Station, Chhindwara, which has been annexed to the petition, nothing else has been intimated at any point of time in regard to the conduct of the non-applicants 1 to 4, after their enlargement on bail.