BALWAN SINGH Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) BY means of this application, Balwan Singh, accused, standing trial for the commission of offences Under Sections 302/307/109/34 RPC has sought his release on bail solely on the ground that the role attributed against the accused, Balwan Singh, is that he made oral exhortation along with Gandharb Singh accused, on which Dev Raj, accused, PSO provided for the protection of Gandharb Singh, accused, started firing with AK -47 Rifle and killed Pardeep Kumar and Kamal Raj on spot and Sanjeev Kumar was fortunate enough to escape with injuries alone. It is further stated that two persons, accused Gandharb Singh and Balwan Singh, exhorted a 'Lalkara' at the same time, attributing it to Balwan Singh would be of no effect on PSO, who, in fact, was provided to accused Gandharb Singh for protection. The PSO had to protect Gandharb Singh legitimately, and was expected to have acted under his instructions alone and not Balwan Singh. It is also urged that if the allegations of oral exhortation made by Balwan Singh are taken out of the prosecution case, the only allegation against him remains that he inflicted injuries on Sanjeev Kumar with the butt of 12 -bore gun snatched from Mr. Gandharb Singh. In such situation, it cannot be suggested, even with a figment of imagination, that Balwan Singh, peti - tioner/accused had shared the intention to kill the deceased with Gandharb Singh, accused.

(2.) IN controverting the contention of the petitioner, Mr. B.S. Salathia, learned Additional Advocate General, in his reply submitted that the petitioner is facing a trial in a murder case along with other accused, which is pending at the stage of recording prosecution evidence. His further contention is that the earlier bail application, commenced by the petitioner, had been rejected by the Trial Court for want of valid reasons. He also submitted that in case the petitioner is released on bail, in all likelihood, it would hamper the progress of the trial and tamper the evidence, yet to be recorded in the case.

(3.) IT may be pointed out at the threshold that the petitioner is facing trial in a murder case and section 497(1) puts restrictions/embargo on the powers of the Court to grant bail in case of offences punishable with death penalty or imprisonment for life, unless squarely falls within the ambit of exception clause. That apart, the considerations, which normally weigh with the court in granting bail in non -bailable offences, are the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of the witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. Further, the discretionary jurisdiction of the Court should be exercised carefully and cautiously by balancing rights of the accused and interest of society.