MADAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS bail appllication has been opposed by Shri Praveen Balwada on behalf of the complainant. Shri Balwada has raised a preliminary objection in this case submitting that the accused-petitioner in this case has been convicted twice. Therefore, this bail application should not be considered on merits keeping in view the provisions of Sec. 437, Cr. P. C. Shri Balwada has placed reliance on Raju @ Rajkumar Vs. State of Rajasthan (I) in which it has been observed that there is legislative mandate and if the accused-petitioner has been convicted twice before, his bail cannot be granted. Shri A. K. Gupta has submitted that the foresaid observations in the case of Raju @ Rajkumar Vs. State of Rajasthan (supra) have been made with reference to the provisions of Sec. 437, Cr. P. C. Shri Gupta has submitted that it is a fact that the accused-petitioner had earlier been convicted under Sec. 32 149, IPC and he was also convicted in another case under Sec. 336 and 337, IPC. Shri Gupta has submitted that the appeal against conviction under Sec. 326/149, IPC is pending before the Supreme Court. Nevertheless the fact remains that this was an offence punishable with imprisonment for life, but his submission is that the accused-petitioner's conviction under secs. 336 and 337, IPC was not punishable with death or imprisonment for life, or for seven years or more and both these offences are bailable. He also submitted that the ban under Sec. 437, Cr P. C. is not available against High Court or the Court of Session. In order to meet the sub mission of Shri A. K. Gupta that the ban under Sec. 437, Cr. P. C. is not applicable against the High Court and the Sessions Court, Shri Balwada has cited before me the case of Gurcharan Singh vs. State (Delhi Administration (2), wherein the Supreme Court has observed that the High Court or the Court of Session will be approached by an accused only after he failed before the Magistrate and it is not possible to hold that the mandate of law on bail under Sec. 437, Cr. P. C. will be ignored by the High Court or by the Sessions Court. Shri Gupta has also invited my attention to proviso (ii) to Sec. 37 (1), Cr. P. C. which says that the Court may direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper to do so for any other special reason. Thus, having considered the aforesaid authorities cited by Shri Balwada and having gone through the provisions of Sec. 437, Cr. P. C. I am of the opinion that in view of proviso (ii) to Sec. 437 (1), Cr. P. C, the prior conviction in two cases is not a bar as such for the purpose of considering the bail application in appropriate cases, of course when it is considered to be just and proper for any other special reason. Shri Balwada has cited Meetsingh Vs. State of Punjab (3), and it has been submitted that the special reasons should be with reference to the accused-petitioner himself and not the reasons which are not attributable to the accused himself.

(2.) I have considered the submissions made before me in support of the application. Shri Gupta has submitted that in the instant case, there is no direct, evidence against the petitioner, Madan Singh. He has further submitted that the evidence which has come on record with regard to conspiracy against the petitioner is only a feeble circumstantial evidence, rather it is no evidence. It has been further submitted that the co-accused Rang Lal who has actively participated in the commission of the offence has already been granted bail, though the other accused Krishna Kant is still in jail. The bail application of the present accused-petitioner has also been opposed on merits by saying that the accused petitioner has been involved in as much as seven criminal cases in the past and reference about the same has been made before me. Shri Gupta has contested that no matter under the NDPS Act is pending against the petitioner and most of the cases against the petitioner relate to his student life and that it is not correct to say that the seven cases are pending gainst the petitioner. Shri Gupta has also submitted that the petitioner now seeks to lead a life as a responsible citizen and he is now publishing a weekly newspaper. It has been given out that the accused-petitioner is in jail since 1. 03. 1992. Shri Gupta has also pointed out that the police had not even filed challan against the petitioner and the cognizance was taken after a long time by order dated 25. 02. 1992 by the Judicial Magistrate on the basis of the complaint which was filed before the Court concerned. Shri Gupta has also submitted that the fact that the challan had not been filed against the petitioner by the police and the cognizance was taken by the Court on the basis of the complaint against the petitioner should by itself be the special reason pertaining to the accused himself for which he is entitled to be bailed out.