RAM SINGH Vs. STATE

JUDGEMENT

(1.) Usually, after having once dismissed the application under section 438 Cr. P.C., unless there are some glaring facts which might have escaped the notice of the court when the order was made or something has come on record thereafter warranting a different view then taken earlier this court does not grant IInd bail application. This is the usual and uniform practice of this court. In this case, it appears that though the two bail applications have been filed, the second was filed which was lying in defects and thereafter the third was filed. But in fact it can be said that it is the second bail application. It may be stated that this court under his order dated 15.11.1989 in S B. Cr. Misc. Application No. 3248/89 had dismissed the bail application of the accused petitioner and others as having withdrawn. Out of the accused persons who are named in FIR, it was given out by the learned counsel for the petitioner that the accused petitioners Girraj and Madho Singh along with three who are also named in FIR, the police did not file charge-sheet because after investigation their involvement prima facie was not found. It can be said that so far the earlier bail application under section 438 Cr P C. is concerned was dismissed and withdraw. Generally, the experience of this court shows that even if an application is dismissed as withdrawn and request is made to withdraw the application, it is because the learned counsel feels that the court is not inclined to grant the bail for pre-arrest and it can be said that even in this case the learned counsel withdrew the application under section 438 Cr. P.C. of the accused-petitioner and others because this court was not then inclined to grant pre-arrest bail.

(2.) I shall presently show and it appears to me that it is an exceptional case and I will admit that some facts escaped the notice of this court, because no charge-sheet had been filed, the learned counsel for the petitioner was not equipped with the relevant material to assist this court and the proper assistance was not given by the Public Prosecutor and this court also did not minutely examine the record then. Be that as it may I have now heard the learned counsel in detail and also had gone through case diary which could only be secured after more than 4 attempt and when the S.P. (Rural) was directed that in case the case diary is not received, a serious view of the matter shall be taken the same family. Held :

(3.) It was contended by the learned counsel for the petitioner that Mahender Dixit, SHO Police Station Bandikui who investigated the case was inimical towards him and the other accused persons and transfer of investigation was sought by the accused and others and the Inspector General Police also ordered that the case should be investigated by somebody else other Mahender Dixit, but even the order of the I.G. was not given the due respect with it deserves. He contends that the investigation therefore, has not been fair and the S.H O.has left some of the accused persons whereas others have been falsely involved in that case. No case is made out against him. It may be stated that on perusal of the case diary I could locate one paper available at page 94 of the case diary. It is typed complaint by the accused petitioner and Narender Singh through their advocate Shri Ganeshia. He is now representing Ram Singh in this court. There is an endorsement of this "I.O/S.P. (Rural), Jaipur kindly get it investigated by another officer." It appears to be 16th of Dec., 1989, but it does not appear that the accused petitioners case was transferred from Mahender Dixit to some other police officer. Be that as it may perusal of the case diary will show that so far as the accused petitioner is concerned, it is not said anywhere by any of the witnesses that he had accused any injuries to the deceased Shaitan Singh. A look at the statement of the witness recorded under section 161 Cr. P.C. including all the 6 persons who received simple injuries allegedly in the same occurrence, will show that the occurrence had taken place because Madho Singh who is accused in the case, on a day prior to the occurrence had constructed a boundary wall dividing the agricultural fields. It was the complainant party who had gone to the demolish the wall and were actually in the process of demolishing the wall. It can also be said that Bahadur Singh also received injuries on the side of the accused persons. It also appears from the statements of the witnesses recorded that when the occurrence had taken place the parties were separated and it was decided that both the parties will sit together and resolve the dispute. Both the parties belong to the same family. At the stage when the both parties were separated it is alleged that Fateh Singh who was armed with gun fired at Shaitan who died as a result of gun shot injury. Therefore so far as the accused is concerned, it is not the case of the prosecution that he caused any injury to Shaitan Singh deceased. At best it can be said that accused in facts and circumstances of the case might have caused injuries to any of the injured persons other then the deceased before people intervened and separated both the parties.