NAWAL KISHORE SINGH Vs. RABINDRA MAHTO

JUDGEMENT

(1.) This application under section 439(2) of the Code of Criminal Procedure (hereinafter to be called as the Code) is for cancellation of bail of the opposite party No.1 Rabindra Mahto and for getting him arrested and committing him to custody after quashing the order dated 29-5-1990, passed by the Sessions Judge, Nalanda at Biharsharif, in Bail Petition No. 560 of 1990, by which accused opposite party No.1 Rabindra Mahto was granted bail.

(2.) The relevant facts are that Sarmera P.S. Case No. 27/90 dated 27-2-1990 under sections 302/34 of the Indian penal Code and 27 of the Arms Act was instituted on the basis of a written report of the petitioner addressed to the officer-in-charge of Sarmera police station filed on 27 -2- 1990 at 6.30 p.m. alleging therein that he, along with Arjun Singh, Brijnandan Singh, Chhotan Singh and Vijay Kumar, was standing 6n Sarmera-Copalbad Road, near Mirnagar Village, i.e. village of opposite party No.1, on the aforesaid date in the evening. On that date the selection for Bihar Legislative Assembly was being held. At about 4 p.m. accused Alakhdeo Mahto, covillager of accused opposite party No.1 was seen standing near a maize field with Rifle and opposite party No. 1 was also standing there, being armed with gun. At that time, Nandu Singh (deceased) was going to his village Mirnagar with a bundle of Khesari crop on his head. Further allegation in the written report was that on the order of co-accused Alakhdeo Mahto, opposite party No.1 Rabindra Mahto fired with his gun on Naridu Singh, as a result of which he received injuries, fell down in the field of Gaffur Mian and instantaneously died. The Investigating Officer in course of investigation examined the eye-\llnesses, namely, Arjun Singh, BrijnandliJl. : ;{ngh, Chhotan Singh and others. He exam tied other witnesses as well. The post-mortem examination was held over the dead body of the deceased Nandu Singh. The case was also supervised by the Doctor. S.P. Charge-sheet appears to have been submitted in the case, but the present stage of the case is not known.

(3.) The learned counsel appearing for the petitioner has sought the order dated 29-5-1990, passed by the Sessions Judge, Nalanda at Biharsharif, granting bail to opposite party No. 1 to be quashed and cancellation of bail of opposite party NO.1 on the ground that the learned Sessions Judge has passed the order granting bail to the opposite party No.1 on improper as well as wrong consideration. The main grievance of the petitionerTs counsel is that the learned Sessions Judge has failed to consider the statement of the eye-witnesses, namely, Arjun Singh, Brijnandan Singh, Chhotan Singh and Vijay Kumar. All the eye-witnesses have fully supported the prosecution version stating that it was the shot fired by opposite party No. 1, which hit the deceased Nandu Singh, resulting in his death and thus the learned Sessions Judge has misdirected himself in disposing of the bail application, filed by the accused opposite party No.1. The learned sessions. Judge has also failed to take into consideration the objective findings of the Investigating Officer as well as the opinion of the doctor, who held post-mortem examination over the dead body of the deceased, which fully supported the prosecution case. Further grievance has been made by the petitioners counsel that when the Sessions Judge had rejected the application for bail of accused Alakhdeo Mahto, who is alleged to have ordered for killing the deceased it was not proper for him to release the main assailant, i.e. opposite party No.1 on bail.