Sher Singh vs State of Haryana

M.L. Koul, J.

The petitioner Sher Singh is seeking bail in F.I.R. No. 129 dated 9.6.1995 registered with Police Station, Sampla for the offence under Section 302 read with Sections 148 and 149 of the Indian Penal Code and at the moment is facing trial in the Court of Additional Sessions Judge (I), Rohtak.

It is contended that the petitioner is innocent and has not participated in the commission of the alleged crime in which precious lives of two persons are lost because they died out of the injuries sustained by them in the occurrence. According to the prosecution the whole occurrence has originated from the Baithak of the petitioner when the petitioner and the other eight accused for common object participated in the occurrence.

According to the learned counsel for the petitioner, the petitioner did not participate in the occurrence and caused any injury on the vital part of any of the victims which resulted into their death. However, it is found that the petitioner as per the statement of PW Ashok Kumar recorded under Section 161 of the Code of Criminal Procedure has given a Ballam blow on the thigh of Surta deceased.

This Court at the moment is not in a position to sift the evidence collected by the police during the investigation of the case. Such evidence is rebuttable during the trial of the case and at the moment prima facie it is to be believed. In the instant case, the petitioner has already been chargedsheeted by the trial Court along with his other coaccused and the case is fixed for recording of the prosecution evidence. The earlier bail application of the petitioner was rejected by this Court on March 7, 1996 for having been withdrawn by the petitioner. After that another bail application moved before the Additional Sessions Judge has also been rejected.

It is a well settled principle of law and as envisaged within the provisions of Sections 439 of the Code of Criminal Procedure that the power of grant or rejection of bail by the High Court and the Court of Session is concurrent in nature and both the Courts have equal powers with regard to the grant or rejection of bail. This Court in no manner can sit over the order pased by the Additional Sessions Judge rejecting the bail as a Court of revision or appeal. No fresh material has been brought on record on the basis of which this Court can exercise its jurisdiction afresh within the ambit of Section 439 of the Code of Criminal Procedure for grant of bail to the petitioner. The petitioner is not only charged for an offence under murder but he is also charged for an offence under Section 149 of the Indian Penal Code as well. He being a member of an unlawful assembly at the time of committing the offence is a party prima facie to the commission of offence. Once it is found that the petitioner has participated in the occurrence and has caused a blow on the person of one of the deceased in the case, this Court at the moment is not in a position to grant bail to the petitioner. After the evidence of the eye witness is recorded in the case by the trial Court and it is found on that evidence the petitioner is not connected with the commission of crime, he can move afresh before the trial Court for grant of bail in his favour. As such no case for grant of bail is made out. Hence rejected.