IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ORIGINAL JURISDICTION Criminal First Bail Application No.946 of 2009 Order on the Bail application of accused. CRIMINAL SIDE Nagendra Bramchari ….Applicant (In Jail) Versus State of Uttarakhand …….Opposite party Dated: December 22, 2009 ____________________________________________________________________ Arising out of Case Crime No.372/2007 (S.T. No.279/08) Under Sections 302 r/w 34, 120-B IPC P.S. Kotwali, District Haridwar ______________________________________________________________ Hon’ble Dharam Veer, J. Heard Sri Lokendra Dobhal, learned counsel for the applicant and Sri M.A. Khan, learned Brief Holder for the State. In brief, the prosecution case is that Harbir Singh was a caretaker of the land of Subhash Saini since last 15 years before the incident in question. Inder Sharma, Sanjeev @ Jeeva (who was in jail) and Nagendra Brahmchari (applicant-accused) wanted to grab the aforesaid land and Harbir Singh was not allowing them to do so. The above- said persons also threatened to Harbir Singh to his life several times for that reason. On 13.07.2007 at about 7:30- 8:00 P:M, when Harbir Singh was sitting outside his house along with Subhash Saini in a chair and the complainant Smt. Saroj Devi (wife of Harbir Singh) was also standing near the door, meanwhile Inder Sharma and Nagendra Brahmchari along with one unknown person came on the place of occurrence from the side of doctor’s shop. After seeing Harbir Singh, Inder Kumar Sharma and Nagendra Brahmchari (applicant-accused) asked their third companion (unknown person) that he is Harbir Singh who is to be murdered. On this exhortation by Inder Sharma and Nagendra Brahmchari (applicant-accused), that unknown person fired on Harbir Singh due to which he fell down in the gallery and these accused persons ran away towards Royal Hotel. Then Harbir Singh was taken to the hospital by Subhash Saini and son of complainant, namely, Sanjeev, where he was declared dead. It was further averted in the F.I.R. that Sanjeev @ Jeeva in conspiracy with Inder Sharma and Nagendra Brahmchari (applicant- accused), have got committed the murder of Harbir Singh with the help of a hired criminal in order to grab the land in question. With the same averments, the F.I.R. was lodged by Smt. Saroj Devi on 13.07.2007 at 08:40 P:M at P.S. Kotwali Nagar Hardwar, Distt. Hardwar. Learned counsel for the applicant submitted that no specific role has been assigned to the applicant in the FIR. Per contra, learned Brief Holder submitted that because of the reason that Harbir Singh was the caretaker of the property in question and he was not allowing the applicant and his companion to grab the land, for this reason only he was targeted and subsequently, he was got murdered by the applicant and his companion Inder Sharma through a hired criminal. The State has filed its counter affidavit in which the criminal history of the applicant has been mentioned in paragraph no.6. Against the present applicant, as many as seven cases have been registered under the various sections, which is as under: - 1. Case Crime No.808/99 U/s 379 IPC, P.S. Kotwali Nagar, Haridwar 2. Case Crime No.96/2000 U/s 302/307/201/120-B IPC, P.S. Kotwali Nagar, Haridwar 3. Case Crime No.37/02 U/s 504/506 IPC, P.S. Kotwali Nagar, Haridwar 4. Case Crime No.87/05 U/s 147/149/342/386/ 452/323/506 IPC and 3(1)(1) SC/ST Act, P.S. Kotwali Jwalapur, Haridwar 5. Case Crime No.179/07 U/s 386/506/120-B IPC, P.S. Kankhal, Haridwar 6. Case Crime No.389/07 U/s 386/447/506 IPC, P.S. Kotwali Jwalapur, Haridwar 7. Case Crime No.411/07 U/s 2/3 Gangster Act, P.S. Kotwali Jwalapur, Haridwar Out of those seven cases, a copy of judgment and order dated 8.4.2004 passed by IV FTC/Addl. Sessions Judge, Haridwar in S.T. No.306 /2000 State Vs. Narendra Singh & others in Case Crime No.96 of 2000 u/s 302/307/120-B IPC, has been produced before the Court today, a perusal of which also crystallizes the fact that the applicant-accused has been sentenced to life imprisonment for the offence punishable u/s 302/120-B and further for 10 years/ R.I. u/s 307/120-B IPC with fine of Rs.5,000/-. Thus, it is clear that the applicant accused is habitual of committing these types of offences. Learned Brief Holder further argued that the applicant-accused, while on bail in S.T. No.306/2000 vide which he was sentenced for life imprisonment, he along with his companions has got committed the murder of Harbir Singh and, therefore, as per Section 437 (1)(ii) Cr.P.C., the applicant is not entitled for bail. Section 437(1)(ii) Cr.P.C. reads as under: - 437(1)(ii) such person shall not be so released if such offence is cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment of seven years or more, or he had been previously convicted on two or more occasions of [a cognizable offence punishable with imprisonment for three years or more but not less than seven years] The applicant-accused has been assigned with a specific role in commission of the aforesaid crime and he is also named in the FIR. It also transpires that for the sole reason of grabbing the land, the applicant-accused along with his companions, hired a outside criminal and in order to achieve this motive, they got Harbir Singh murdered. Looking to the facts and circumstances as above- discussed, on hearing learned counsel for the parties; perusing the contents of the FIR; considering the gravity of the offence that the applicant and his other companions got a criminal hired from outside and with the intention to grab the property, they got Harbir Singh murdered; also considering the criminal history of the applicant and perusing the conviction and sentence of the applicant- accused by the trial court for life imprisonment as well as on perusing the other material available on record, the Court is of the view that the present applicant does not deserve bail at this stage. The bail application is liable to be rejected and is rejected accordingly. Rejected. (Dharam Veer, J.) 22.12.2009 Rajeev Dang