LAWS(ORI)-1992-7-8

RAJANI RANI KAR Vs. GOLI PRADHAN

Decided On July 01, 1992
Rajani Rani Kar Appellant
V/S
Goli Pradhan Respondents

JUDGEMENT

(1.) THIS is an application for cancellation of bail under section 439(2) of the Code of Criminal Procedure, 1973 (for short, "the Code") filed by Smt. Rajani Rani Kar, widow of the deceased Bhagirathi Kar and her uncle -in -law Prafulla Kumar Kar, the informant.

(2.) IT is alleged in the First Information Report that there was party faction in village Sanagorada; the informant, the deceased and others forming one group and the opposite parties and others forming the rival group. On 28.6.1991 at about6 p.m., while the informant was returning to his house in a bi -cycle driven by his party -man Golak Pradhan along with the deceased who was following them in another bi -cycle, he found that in front of the grocery shop of Subala Pradhan of his village some persons of his rival group including Rankanidhi Nayak had assembled. Immediately after he and his companion Golak Pradhan crossed the said shop, when the deceased was passing by the side of that shop, Rankanidhi dealt a farsa blow on his back causing bleeding injury. Soon after receiving such blow, the deceased left the bi -cycle at the spot and while he was attempting to run away there from, his movement was obstructed by some persons and thereafter Rankanidhi dealt another farsa blow on the left side of his cheek resulting in severance of a portion of his left ear. On receipt of such blow, when the deceased fell down on the ground, the other persons of the rival group named in the F.I.R. dealt several blows by means of deadly weapons resulting in his death. At the sight of the assaults, the informant and his companion ran away towards their sahi and when they were coming to the spot along with their sahi people, the opposite parties and their companions belonging to the rival group threw bombs at them for which they could not reach to the spot. On the same day at about 9.30 p.m. the F.I.R. was lodged at the spot when the A.S.I. of Sarankul police station arrived there and on the basis thereof G.R. Case No. 245 of 1991 under sections 341/342/302 all read with section 34, I.P.C. and section 9(b) of the Indian Explosive Act was registered against five specific accused persons and others (the opposite parties are not named therein) and investigation proceeded. It appears from the case diary that charge -sheet has already been submitted on 19.10. 1991 against 12 accused persons including the opposite parties and of them four have been declared as absconders.

(3.) IT is contended by Sri S.K. Patnaik, the learned counsel for the petitioners that there are copious materials on record to show that along with others the opposite parties assaulted the deceased with deadly weapons resulting in his death and therefore even if the learned Associate Public Prosecutor gave concession, the impugned order is liable to be vacated by cancelling the bail order, the same having been passed improperly and arbitrarily without jurisdiction. It is further submitted by him that after their admission to bail, the opposite parties have terrorised the witnesses for which they have become mortally afraid to depose against them in Court and on the basis of such submission, it is contended that such supervening circumstance may be reckoned with for cancellation of the bail already granted. Mr. B.P. Ray, the learned counsel for the opposite parties, on the other hand, submits that the learned Sessions Judge having admitted the opposite parties to bail not only on the concession given by the Associate Public Prosecutor but also on perusal of the case diary, it cannot be said that there was improper or illegal exercise of jurisdiction. It is the further submission of the learned counsel that the allegation of terrorising the witnesses subsequent to their admission to bail by the opposite parties has been specifically denied by filing counter affidavit and that there being no grievance of the prosecuting agency, the admission of the opposite parties to bail by the learned Sessions Judge which is discretionary should not be lightly interfered with by this Court. It is lastly contended by the learned counsel that the petitioners being the private persons are incompetent to apply for cancellation of bail, the only authority competent to file such an application being the prosecuting agency. On these rival contentions, the points that emerge for determination are: i. whether private persons other than the prosecuting agency can maintain an application for cancellation of bail? ii. whether there has been illegal and arbitrary exercise of jurisdiction by the learned Sessions Judge while admitting the opposite parties to bail? and iii. whether after their admission to bail by the learned Sessions Judge, the opposite parties have misutilised the liberty granted to them by terrorising the witnesses for which the witnesses have felt insecured to give evidence in Court relating to the offence of murder?