PRABHU Vs. STATE AND ANOTHER

JUDGEMENT

(1.) This is an application for cancellation of bail filed under Sec. 439 (2) Crimial P.C. against the bail granted to non-petitioner No. 2 Ramrai by the learned Sessions Judge, Jaipur Distt., Jaipur vide its order dated 1.8.1986.

(2.) Learned counsel for the petitioner Mr. O. P. Gupta has pointed that the F.I.R. No. 118/86 dated 14.7.86 was lodged by the petitioner stating therein that his daughter deceased Prem, who had married 3-4 years earlier to the non-petitioner No. 2 has died on account of falling down in the well. It was also alleged that she was maltreated by her husband and other members of the family and that a doubt was expressed that she has been murdered and thereafter thrown into the well. After arrest of the accused an application under Sec. 439 Crimial P.C. was filed before the court of learned Sessions Judge, Jaipur Distt., Jaipur for grant of bail inter alia, on the ground that the non-petitioner No. 2 was in judicial custody and in the facts and circumstances of the case it was just and proper to release him on bail.

(3.) Learned counsel for the petitioner has contended that the trial court has grossly erred in granting bail to the non-petitioner No. 2 as this was a clear case of murder and in such serious offences, the bail should not have been granted while the investigation is still in progress. He has drawn my attention to the case Pokar Ram Vs. State of Raj. (1985 Cr.L.R. (SC) 265) , in which their Lordships of the Supreme Court have referred to certain other decisions of the Apex Court of the country and have drawn attention to the distinction to be made between an ordinary order of bail and an order of anticipatory bail. It has been pointed out that very compelling circumstances may be made out for granting bail to a person accused of the offence of murder, under Sec. 438 Crimial P.C. when the investigation is still in progress. This was a case in which anticipatory bail was granted to a person accused of the offence of murder by the learned Sessions Judge while investigation was in progress, against which an application of the bail was filed in this court, which was rejected. Their Lordships of the Supreme Court, therefore pointed out the differences between the consideration of application filed under Sec. 438 Crimial P.C. for grant of anticipatory bail and the one filed under Sec. 439 Crimial P.C., while the accused is already in custody and cancelled the anticipatory bail granted to the accused. It was also observed that if such order was allowed to stand, in which person accused of committing offence of murder was promptly given the benefit of anticipatory bail at asking, the faith of public in administration of justice is likely to be shaken.