Raja Begum vs Mehraj-ud-din Wagay

A case under FIRNo.188/09 was registered on 10th of June, 2009 against the respondent under Section 323 RFC with Police Station,

Anantnag. When the injured passed away on 16.06.2009, an offence under Section 302 RFC was added during the investigation of the case and

the accusedrespondent was accordingly arrested. Before filing of report under Section 173 Cr.P.C bail application was filed on behalf of the

respondent, which was considered by the learned Principal Sessions Judge, Anantnag, who vide order dated 31.07.2009 enlarged the respondent

on bail on furnishing bail bonds worth Rs.30,000/. The bail order was hedged with some conditions.

It is this bail order which is subject matter of this petition and prayer is made for quashment of the same.

Heard learned counsel for the parties. Considered the matter.

The operative part of the bail order is reproduced as under: ""I have considered the arguments advanced and have also gone through the case dairy.

The stand taken by counsel for accused is factually correct whereas the occurrence has taken place on 10.06.2009. Ghulam Ganie has passed

away on 16.06.2009 and his cause of death has been shown as cardio respiratory arrest due to multiple brain contusion which had followed the

head injury whereas deceased was admittedly an old man. Admittedly no weapon of offence has been used by the accused and the fact that the

deceased due to the old age had a sudden fall on the ground can not be ruled out. Under these circumstances the detention of the accused is

unjustified. He is ordered to be released of bail on furnishing bail bonds worth Rs.30,000/subject to the conditions that he will cooperate with the

I.O during investigation, will not leave the territorial limits of the state without prior permission and will not try to win over the witnesses acquainted

with the facts of the case. Case diary be returned to the police. File be consigned to records

While passing the bail order the Principal Sessions Judge, Anantnag has extended the concession of bail to the respondent on the presumptive

conclusion that the accused being an old aged person could have had a sudden fall on the ground and resultantly sustained injuries.

When a case is registered under Section 302 RFC then the court while deciding the bail application has to consider all aspects of the matter

including the seriousness of the offence and the allegations against the accused. Offence under Section 302 RFC carries death penalty as well. The

Court while considering the bail application in such type of offences has to be very cautious. Bail cannot be granted to an accused on assumptions

and presumptions. The learned Judge has been persuaded to grant the bail on the assumption that the deceased might have fallen on the ground of

his own and sustained injuries which resulted in his death. Recording of such observation, when report under section 173 Cr.P.C was not filed, is

not in consonance with settled judicial principles.

The court, after the report under section 173 Cr.P.C is produced, is duty bound to see as to whether any offence is made out and if any offence

is made out, what is the nature of the offence. That stage in this type of case had not come when the bail application was considered and the bail

order was passed. The principles governing grant or refusal of bail have not been followed.

The impugned bail order on the face of it is illegal and deserves to be quashed.

This petition is, accordingly, allowed. The impugned bail order is quashed. The accused shall be taken into custody. Bail bonds are cancelled.

Learned trial Judge shall consider the case for charge/discharge of the accused at the earliest and thereafter reconsider the bail application and pass

appropriate orders immediately. The learned Judge shall pass orders on the bail application when request is made without being influenced by the

observations, if any made on merits in this order.

Record of the trial court be sent back. After record is received by the learned trial Judge, he is requested to consider the matter in terms of the

observations made in this order.

Disposed of.