KUMUD MAHAPATRA Vs. ABHINA MALLICK ALIAS ABHIMANYU MALLICK

JUDGEMENT

(1.) This is a petition under Section 439(2) of the Code of Criminal Procedure (hereinafter referred to as the CodeT) for cancellation of bail granted to opposite party Nos. 1 and 2 by the learned Additional Sessions Judge, Jaipur. The first petitioner is the widow of the deceased and the second is the informant.

(2.) Stated in brief as revealed from the First Information Report and the charge-sheet the facts of the prosecution case are that deceased Sagar Mahapatra (hereinafter referred to as the deceased), ex-Sarpanch of village Bada Beruan was returning to his village on 11-8-1988 on a Luna-Moped by the Grama Panchayat Road. At about 5.00 p.m. he was near village Taluri. The opposite party Nos. 1 and 2 armed with lathis waylaid him. One of them dealt a blow on the head, as a result of which the deceased fell down on the ground. Thereafter, both the opposite parties repeatedly assaulted him by means of the lathis on different parts of his body. Some person working in the nearby fields saw the assault and raising hue and cry ran towards the place. Seeing them running one of the said opposite parties sat down near the deceased and by means of a barbers knife cut his throat. Thereafter, both of them rode a cycle and started to flee from the place by threatening the persons who were about to surround them. Some of the persons arrived at the place where the deceased was lying and saw that he had sustained several injuries and his throat was cut. There was profuse bleeding from his head and neck. He was dead. The persons then gave a hot chase to the fleeing opposite party Nos. 1 and 2 who entered inside village Janha, abandoned the cycle and the lathis and started to run. They were, however, caught by some villagers. When questioned they identified themselves and gave out their names and made extra- judicial confession that they had murdered the deceased. Information reached the Korai Police Station and the Officer-In-Charge rushed to village Janha where the First Information Report was lodged at about 5.30 p.m. Investigation commenced and as a result thereof opposite party Nos. 1 and 2 as the real assailants of the deceased and four others as the conspirators were charge- sheeted under Sections 302 and 120-B read with Sections 34 and 109 of the Indian Penal Code on 8-11- 1988.

(3.) Opposite party Nos. 1 and 2 moved for bail in January 1989 before the learned Additional Sessions Judge after the charge-sheet was submitted along with the record of the investigation. The entire record of the case was with him. After hearing, he passed an order dated 20-1-89 refusing bail to opposite party Nos. 1 and 2 on the ground that the offence was serious in nature. Opposite party Nos. 1 and 2 did not lose heart and again moved the learned Additional Sessions Judge for bail in the month of February 1989. After hearing the learned Counsel appearing for both parties and relying upon two decisions reported in Bhagirath Singh Judeja v. State of Gujarat,1 Sita Ram v. State of U.P.2 he admitted opposite party Nos. 1 and 2 to bail on the ground quoted below: In the present case it appears from the case record that the petitioners were forwarded to court in second week of August 1988 and till yet the case is not committed to the Court of Session for trial, though many adjournments are made and the proceeding is being delayed Hence, accepting the principles as indicated by the Honble Supreme Court reported in 1984 Cr1 . L.J. p. 160. I am inclined to release the petitioners on bail with conditions.