FAKRUDIN Vs. ABDUL RAHIM

JUDGEMENT

(1.) THIS is an application under Section 439 (2) of the Code of Criminal Procedure, seeking cancellation of the bail granted to the accused non-petitioners by the learned Sessions Judge, Kota under his various orders passed under Sections 439 and 438 of the Code of Criminal Procedure. The learned advocate for the petitioner has only pressed this application so far as the grant of bail to two accused non-petitioners by the Sessions Judge, Kota under Section 438 of the Code of Criminal Procedure under his order dated 1st July, 1985. I will therefore, confine myself to the order of the Sessions Judge and this application is therefore, confined for cancellation of pie-arrest bail to the accused non-petitioner Abdul Rahim.

(2.) THE relevant facts are that the Sub Inspector recorded the Purcha Bayan of the injured Hafiq aged 18 years. In the said statement, Shri Hafiq stated that on 11th June 1985 at about 7p. m. he was returning from the Maszid after offering prayer and the accused non-petitioner Abdul Rahim came there. THE accused Abdul Rahim was armed with sword, gave a blow on the head of the Fazul Rahman and injured him. A case was registered and investigation was started.

(3.) AS already stated earlier considerations for grant of pre-arrest bail are different from considerations in granting bail after arrest. Even under Section 437 (1) of the Code of Criminal Procedure, a person shall not be released if there appears reasonable ground for believing that he has been guilty of offence punishable for death or imprisonment for life. This Court in Jag Ram Vs. Gamandi (2) to which I was a party, held that the jurisdiction of the Sessions Judge as well as of this court under Section 439 of the Code of Criminal Procedure is unfettered, but while exercising the same principles under Section 437 of the Code of Criminal Procedure have to be kept in view and unless the court prima facie feels that there are reasonable grounds for believing that the accused is not guilty of an offence punishable with death or imprisonment for life, discretion under Section 438 should not be exercised. It can, therefore, be said that in a case of present nature where the accused is said to have inflicted a sword blow on the head of Fazul Rahman and injury was found grievous on X-Ray, the exercise of the discretion by the learned Sessions Judge under Section 438 of the Code of Criminal Procedure was not proper. A case for cancellation of bail granted to Abdul Rahman under Section 438 is duffly made out.