SAYED TALATUF ALI Vs. MD. ABDUL MABOOD

JUDGEMENT

(1.) ALL the three applications, relate to cancellation of bail of four accused persons in a case of murder under Section 302, Indian Penal Code. The investigation is in progress. The Sessions Judge has enlarged all the four persons on bail. Criminal Misc. Case No. 15/80 has been preferred by the informant against one of the accused persons and Criminal Misc. Case No. 16/80 has been preferred by the informant also against the other three. Criminal Misc. Case No. 97/80 has been preferred by the State against all the four persons. So, for the sake of convenience reference is made to the persons arrayed as opposite parties in Criminal Misc. Case No. 97/80.

(2.) AN oral information was lodged by the Petitioner in Criminal Misc. Case Nos. 15/80 and 16/80 at the Tirtol Police Station that opposite party No. 1 and his associates including opposite party Nos. 2, 3 and 4 murdered one Adam Ahmad on 22 -11 -1979 at about 7.30 p.m. in a mango grove in village Krushnanandapur. It is alleged that the deceased retired from service in February, 1979 and was residing in the village. He had previous enmity with the opposite parties since 1952 on account of disputes over a tank and relating to management of the local village High School. Litigations are pending between the parties. In the year 1972 also, the father of two of the opposite parties along with others filed a petition before the Settlement Officer but became unsuccessful. The dispute related to a tank in the village. The deceased also filed some civil suits against the Managing Committee of the village High School consisting of one of the opposite parties and others. Apart from these cases relating to the tank and the Managing Committee of the School, a number of other civil and criminal litigations have been instituted by the deceased against the opposite parties prior to the date of occurrence The deceased was also previously threatened with assault and murder. As the deceased was apprehending risk to his life he gave up going out during night hours. On 22 -11 -1979 at about 11 a.m., the deceased returned from Cuttack and he was informed by his wife that he was to attend a meeting in the evening. Accordingly, the deceased left his house for the meeting at about 5 30 p.m. From the grocery shop of one Md. Hasim. the deceased along with one Sk. Afsar Ali proceed towards the place of meeting at about 6 p.m. followed by the informant Syed Talatuf Ali. As the meeting could not be held, the informant, Sk. Afsar All and the deceased returned home at about 7 p.m. The informant went towards his house and the deceased came along with Afsar. From a crossing near a mango grove, both of them came walking through the mango grove on the footpath. Afsar got himself separated from the deceased at a distance of about 70 to 80 feet from a partly removed brick heap and after proceeding 10 to 12 cubits towards his house; opposite party No. 4 along with one Alarakha (since absconding) passed in front of Afsar. Immediately thereafter, Afsar heard a groaning sound from the side of the brick heap and so he advanced towards that side by focusing a torchlight. At that time he saw opposite party No. 3 Azad and another person running away from that place and the deceased lying on the ground near the brick heap. Opposite party No. 1 Fakir came running towards him holding an iron -rod followed by opposite party No. 4 Mabood. Opposite party No. 1 gave him a push and threatened to finish his entire family if he would shout or disclose the incident to anyone and ordered him to return home quietly. Opposite party No. 4 was holding a knife, more than one foot III length. Afsar was put to fear of instant death by opposite party No. 1, for which he could not dare to disclose the fact. In the morning on 23 -11 -1979 the deceased was found lying dead by the side of the brick heap with multiple bleeding injuries. Of the four opposite parties, opposite party Nos. 1 to 3 were arrested one or two days after the investigation started, but opposite party No. 4 was arrested at Cuttack some days thereafter.

(3.) THIS is a case of alleged murder. The question of cancellation of bail came up for consideration before a Division Bench of this Court in State of Orissa v. Artatran Singh and Ors. Crl. Misc. Case Nos. 451, 452 and 453 of 1978 decided on 19 -7 -1979. It was held therein that the Court has to consider first of all whether a prima facie case has been made out and the gravity and the nature of the offence alleged to have been committed. In addition to the same, the Court has also to consider whether there is likelihood of the accused absconding and tampering with the prosecution evidence which will hamper fair trial of the case in a Court of justice. The Supreme Court in The State v. Captain Jagjit Singh : : A.I.R. 1962 S.C. 253, laid down the criteria for consideration for granting of bail in cases of non -bailable offences; such as nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tempered with, the larger interests of the public or the State and similar other considerations. In Gurucharan Singh v. State (Delhi Administration), : A.I.R. 1978 S.C. 179, the Supreme Court was considering the principle of cancellation of bail. It has been laid down in the said decision that the grave apprehension of the prosecution that there was a likelihood of the accused tampering with the prosecution witnesses was one of the considerations. In relation to the circumstances of the case, revealed, from the allegations and the position of the accused in relation to the eye -witnesses, it was incumbent upon the Court to give proper weight to the serious apprehension of the prosecution with regard to tampering with the eye -witnesses. It was observed that the matter would have been different if there was absolutely no basis for apprehension of the prosecution with regard to tempering of the witnesses and the allegation rested only on a bald statement. The only question which the Sessions Judge was required to consider at the stage of bail was whether there was prima facie case made out, as alleged on the statements of the witnesses and on other materials. The taint of unreliability could not be attached to the statement of a witness and whether his evidence will ultimately be held to be trustworthy will be an issue at the stage of trial. In considering the question of bail of an accused in a non -bailable offence punishable with death or imprisonment for life it is necessary for the Court to consider whether the evidence discloses a prima facie case to warrant his detention besides other relevant factors. In addition to the aforesaid observation the Supreme Court has further field: