SHAILENDER BISHNOI Vs. HARYANA STATE THROUGH CBI

JUDGEMENT

(1.) THROUGH Crl. Misc. No. 1713-M of 1998 Shailender Kumar Bishnoi-petitioner has prayed for the grant of bail to him in case FIR No. 181 dated 8.5.1997 earlier registered at Police Station Sadar, Hisar under Sections 302/346/201 read with Section 120-B of the Indian Penal Code, now case No. RC 28(S)/94/CHS under Section 364 of the Indian Penal Code. Through Crl. Misc. No. 21221-M of 1998 Kuldeep Singh Godara has prayed for the grant of bail to him in the said case.

(2.) THROUGH this common order which I propose to pass now, both these Crl. Misc. Petitions shall be disposed of.

(3.) IT was submitted by Sh. H.L. Sibal, Senior Advocate that Subhash Bagri was allowed bail by another Bench of this Court vide order dated 9.1.1998 in Crl. Misc. No 25508-M of 1997 as according to the Investigating Agency, he had no association with the remaining four accused-persons nor was it pointed out by the CBI or Sh. R.S. Dhull, Advocate that there was any direct or circumstantial evidence to suggest any link between Subhash Bagri and the other accused and further the confessional statement made by him (Constable Mukesh Kumar) before the Special Judicial Magistrate, CBI Patiala was found to be not true by the CBI on verification and also the same was retracted by him. He submitted that the case of Shailender Bishnoi is substantially the same as that of Subhash Bagri. It was also submitted that only Mukesh Kumar was challaned and Shailender Bishnoi was shown in column No. 2 and the prayer of the police was that there was no sufficient evidence to prosecute Shailender Bishnoi and he should be discharged. It was also submitted that earlier during investigation, when the offence was one under Sections 364/346 of the Indian Penal Code, Shailender Bishnoi was arrested on 12.12.1994. He was allowed bail by the learned Special Magistrate vide order dated 13.3.1995, when the police had failed to put in challan. It was also submitted that the order allowing him bail should be allowed to hold the field and it should not make any difference if he (Shailender Bishnoi) has now been summoned for trial in exercise of the powers vesting in the Court under Section 319 of the Code of Criminal Procedure for an offence punishable under Section 302 IPC. It was also submitted that bail was granted to Shailender Bishnoi under Section 167(2) of the Code of Criminal Procedure in the case itself in which all these allegations were levelled against him and the co-accused and the mere filing of the charge-sheet subsequently on an application under Section 319 of the Code of the Criminal Procedure on the orders of the Court on that application, would not effect the right of the petitioner to remain on bail, unless bail is cancelled, in view of the principles enshrined in Section 439(2) Cr.P.C. It was submitted that the learned Sessions Judge should not have sent him to jail simply because he was summoned for trial under Sections 302/129-B IPC. He should have allowed him to remain on bail which had been granted to him because of the non-submission of the challan within 90 days of the date of his arrest. It was submitted that it should have been of no consequence and should not have weighed with the learned Sessions Judge that now the offence was different from the one in which he had been allowed bail.