Babulal Parihar vs Raju @ Rajesh and Others

Narain Singh "Azad", J.

The petitioner who is father of deceased Om Prakash seeks cancellation of order dated 11.10.2001 passed by Addl. Sessions Judge, Narsinghpur, in favor of respondents No. 1 and 2, in Sessions Trial No. 1386/96 which pertains to offences punishable U/s.302 and 120-B R/w. Sec. 34 of the I.P.C., wherein, they are admitted to regular bail in connection with alleged incident of murder of Om Prakash, on 11.12.1995.

A perusal of certified copy of order dated 11.10.2001 passed by Addl. Sessions Judge, Narsinghpur, on respondents bail application discloses that by order dated 15th August, 2001, these respondents No. 1 and 2 were admitted to anticipatory bail, till the filing of Police report, with this direction that within a period of a week from the date of submission of Police report, these respondents no. 1 and 2 will have to move an application in competent court, for seeking the regular bail. The Police report is stated to have been submitted on 8th October, 2001, and then respondents no. 1 and 2 submitted the application seeking regular bail, which stood disposed of by order dated 11.10.2001.

As per prosecution, on 11th December, 1995. at 1.30 a.m. when this petitioner Babulal and his deceased son Om prakash were asleep at village Joba, falling in the jurisdiction of PS. Kareli, Dist. Narsinghpur, accused Manoj Choudhary, who had enmical terms with Omprakash, came in a jeep and knocked the rear door of the residence of this petitioner. When Babulal, his sons Sahdev and Omprakash and grandson Vishwas reached the door, they found Manoj Choudhary and one Munna Maharaj armed with guns, along with two other persons, who were standing by the side of the jeep. Thereafter, when petitioner Babulal opened the front door and tried to pacify the dispute, Manoj Choudhary so also Munna Maharaj fired gun shots on Omprakash, which resulted into his instantaneous death. Then all the four persons are stated to have made their escape good in their Jeep. All the four persons inclusive of Manoj and Munna Maharaj remained absconding after the incident. Then in July, 2001, Manoj alias Vishwanath was arrested on whose information only it could be known that at the time of alleged, incident respondents no. 1 and 2 accompanied Manoj Choudhary and Munna Maharaj, to the place of incident.

The petitioner seeks quashment of bail granted to respondents no. 1 and 2 on the ground that till the arrest of Manoj alias Vishwanath, the identity of two persons who accompanied Manoj Choudhary and Munna Maharaj could not be ascertained, as they are not known to the eye witnesses but now these two respondents who are informed to have accompanied by Manoj Choudhary by Manoj himself, are identified in the identification parade by eye witnesses, therefore, the order dated 11.10.2001, wherein, the respondents No. 1 and 2 are granted bail, is perverse, as the same is passed ignoring aforesaid material facts and hence, is liable to be cancelled.

It is found stated by their Lordships of Supreme Court in Aslam Babalal Desai Vs. State of Maharashtra, , that cancellation of bail interferes with the liberty of the individual and hence it must not be lightly resorted to. Then, it is also found explained in State and others Vs. E. Veeramani, that if the order of granting bail is not found to be arbitrary or perverse, the same cannot be cancelled only on allegation of chance of tampering the evidence.

On a careful consideration of the first information report so also the Police statements of Babulal and Vishwas, the order of grant of bail to respondents no. 1 and 2, is not found to be perverse and hence this petition does not merit, which is accordingly disallowed and rejected.