NACHHATTAR KAUR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) NACHHATTAR Kaur petitioner, widow of Dev Singh deceased, has filed this petition under section 439(2) of the Code of Criminal Procedure for setting aside the order dated 15-9-1992 by which Harnek Singh and Sakinder Singh (respondents), sons of the deceased, have been granted bail in case registered, vide FIR No. 36 dated 30-5-92 under Sections 302/34 of the Indian Penal Code, at Police Station Sherpur (District Sangrur).

(2.) MR . T.S. Sangha, Advocate, counsel for the petitioner, has contended that Sakinder Singh respondent gave a kahi blow to Dev Singh. Dev Singh raised his left arm and the blow hit his left hand and that Harnek Singh respondent also gave gandasa blow on the left arm of Dev Singh and Dev Singh fell down. It is further stated in the FIR that Harnek Singh and Sakinder Singh went on giving blows to Dev Singh on his arms and legs with their gandasa and kahi in an indiscriminate manner when he was lying fallen down on the ground; that there are 11 incised wounds and 15 lacerated wounds on the person of the deceased and that the allegations contained in the FIR are fully borne out from the medical evidence. The learned Additional Sessions Judge, Sangrur, has observed:

(3.) IT was held by the Supreme Court in Captain Jagjit Singh's case (supra) that, in these circumstances, considering the nature of the offence it seems that this is not a case where discretion, which undoubtedly vests in the Court under Section 498 (482 ?) of the Code of Criminal Procedure, should have been exercised in favour of the respondents. It was further held that the order passed by the High Court granting bail to the respondents is erroneous and should be set aside. The Rajasthan High Court in Immamuddin v. Ayub Khan and others, 1984 Criminal Law Journal 117 held that ordinarily the High Court will not exercise its jurisdiction under section 439(2) of the Code of Criminal Procedure by cancelling a bail granted by the Sessions Judge in favour of an accused but, if the bail has been granted to an accused in a non-bailable offence punishable with death or imprisonment for life in a manner which smacks of arbitrariness, capriciousness or perversity on the part of the Court of Session granting such bail, the High Court has not merely the discretion but a duty laid on it under Section 439(2) of the Code of Criminal Procedure to cancel the bail and order the accused to be re-arrested.