1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R (1) S.B. Criminal Cancellation of Bail Application No. 27/2008 (State of Rajasthan Vs. Indraj) (2) S.B. Criminal Cancellation of Bail Application No. 28/2008 (State of Rajasthan Vs. Mahendra Kumar) (3) S.B. Criminal Cancellation of Bail Application No. 29/2008 (State of Rajasthan Vs. Sheeshpal) ......... Date of Order : 16/12/2008 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR None present for the petitioner State. BY THE COURT All the three aforementioned applications seeking cancellation of bail involve common question of law and facts and arise out of one and same FIR being FIR No.138/2007, Police Station- Gajsinghpur and therefore, are decided together. These three applications have been filed by the 2 petitioner State on 01.10.2008 seeking cancellation of bail granted to non-petitioners Indraj, Mahendra Kumar and Sheeshpal by orders dated 26.05.2008 and 29.05.2008 in S.B.Criminal Misc. Bail Application No. 2289/08, S.B.Criminal Misc. Bail Application No. 2658/08 and in S.B.Criminal Misc. Bail Application No. 2659/08 respectively. The matter came up before this Court on 21.10.2008. It was stated that the matter will be argued by Mr. S.K.Vyas, Public Prosecutor who filed these applications seeking cancellation of bail and it was directed to list the matter on 24.10.2008 by showing the name of Mr. S.K.Vyas, public prosecutor. Thereafter, the matter came up before the Court on several occasions and it was adjourned for the reason that the matter will be argued by Mr. S.K.Vyas. On 24.11.2008, Mr. J.P.S. Choudhary, public prosecutor appeared for the State and stated that the matter will be argued by Mr. S.K.Vyas, public prosecutor who is busy in election. The matter was therefore, adjourned to 05.12.2008. On 05.12.2008 also, Mr. S.K.Vyas did not turn up and on the statement that the public prosecutor and Govt. Advocate Mr. S.K.Vyas has not attended the Court, the matter was adjourned to 11.12.2008. However, the matter came up before the Court on 12.12.2008. On 12.12.2008, Mr. O.P.Rathi, public prosecutor appeared and stated that the matter will be argued by Mr. S.K.Vyas, Govt. Advocate and Public Prosecutor who is said to be out of station and at his request, the matter was adjourned to 3 15.12.2008. On 15.12.2008, no one appeared for the State and the matter was posted to today i.e. 16.12.2008 by showing name of Mr. S.K.Vyas, counsel for the petitioner. Despite repeated calls, Mr. S.K.Vyas, has not attended the case. Thus, no one appears for the State. I have carefully gone through the grounds taken in the applications seeking cancellation of bail as also the orders granting bail dated 26.05.2008 and 29.05.2008. On earlier occasion, when the matter came up before this Court, the public prosecutor appearing for the State made available the case diary of the case. I have extensively gone through the case diary/ police investigation diary. The petitioner State seeks cancellation of bail on the ground (a) that the non-petitioners are not entitled for the bail granted in their favour as the guilt against them has since been brought home, (b) that the non-petitioners have not been conformable to the conditions entitling them for grant of bail. Likewise, the investigating agency, while concluding the investigation through charge sheet and challan, has found them guilty of the offences charged with along with others and now when even the grant of bail was subject to the condition of surrendering before the police in the event of conclusion of investigation and 4 submission of the charge sheet, then obviously they are not entitled to avail the liberty granted by this Court, (c) that the liberty granted by this Court can be availed by the person who does not mis-use the same, but in the context of present facts and circumstances it is clear that the non-petitioners have misused the liberty granted by this Court. On the strength of some previous cases registered against the non-petitioners, it has been averred that the accused non-petitioners have remained engaged in administration of threatening to the complainant party for which also reports have been registered, this is with reference to the earlier cases may be registered in the year 1991, 2000 and 2006 etc. On these premises, it has been averred that if an accused after bail being granted mis-uses the same and remains indulged in similar activities, he is disentitled to enjoy the liberty of bail so granted. On close scrutiny of the police investigation diary, it appears that FIR No. 138 dated 29.11.2007 came to be registered at Police Station-Gajsinghpur by one Ramchander S/o Udaram Legha for the offences under Sections 447/341/323/336/147/148/ 149/379 IPC and Section 27 of the Arms Act. The non-petitioner Indraj is said to be the Sarpanch of the village. On the aforesaid FIR, the investigation ensued. The Additional Superintendent of Police, Sriganganagar by communication dated 28.02.2008 5 addressed to Superintendent of Police, District Sriganganagar, on analyzing the material available on the investigation diary and statement of witnesses recorded, came to the conclusion that causing firearm injury by non-petitioner Indraj, Sarpanch has not been established, however, the pistol was said to have been fired by co-accused Kaluram. Co-accused Dayaram and Kaluram assaulted the complainant's wife Indradevi and remaining seven accused named in the FIR were only present and no overt act has been assigned to them. The Additional Superintendent of Police directed one Suresh Meel, ASI to verify the facts and truthfulness of the occurrence. The ASI Suresh Meel by communication dated 20.03.2008 addressed to Additional Superintendent of Police, Sriganganagar stated that on the date of occurrence, the complainant Ramchandra, his wife Indradevi, his son Dinesh and one labour Kartarsingh were on the field. At about 11 AM -12 Noon, Kaluram (named in the FIR), Birbalram S/o Ganeshram, Mahendra S/o Sahabram (named in the FIR), Richhapal @ Palaram S/o Prathviraj, Ramswaroop S/o Prathviraj, Prathviraj S/o Ramchandra, Sahabram's wife and Ramlal's wife came to the field of the complainant and by seeing them, complainant Ramchandra and Kartar Singh ran away, however, complainant's wife Smt. Indradevi and his son Dinesh remained in the agriculture field. The matter was also investigated by Mahipal Singh, RPS. The investigation dated 29.11.2007 conducted by him reveals that 6 according to the information gathered during investigation, the firearm injury was caused by co-accused Kaluram, however, non- petitioner Indraj was also present. Similarly, the communication addressed to Additional Superintendent of Police, Sriganganagar by the investigating officer dated 20.03.2008 is indicative of the fact that during investigation, the police also gathered information that in fact no firearm injury was caused and in order to make a case of fire injury, it was the complainant Ramchandra who went to his cousin brother Jailaram and asked Jailaram to cause injury on his leg by his licensed gun so as to create the evidence of firearm and the conclusion arrived at by investigation officer was that on the relevant date of occurrence, non-petitioner Indraj was not at the site, Ramkumar was present but not involved in the occurrence, Ramlal was not at the site, Kaluram was involved in the crime so is the case of Mahendra and Dayaram was present however, not involved in crime, however, Rajaram and Sheeshpal were not at the site. The Superintendent of Police, Sriganganagar by communication dated 17.04.2008 addressed to the Inspector General of Police, Bikaner Range Bikaner, has also opined that it has not been established that the pistol fire was caused by non- petitioner Sarpanch Indraj. From the perusal of the investigation diary, more particularly the injury report of the injured complainant Ramchandra, it appears that the injury suffered by the complainant Ramchandra is lacerated wound ½ cm x 0.3 cm x muscle deep 7 present over anterior aspect of left thigh and swelling 3 cm x 2 cm. Even the doctor examining the injured Ramchandra has not opined that the injury has been caused by firearm. What has been noted by the doctor on the injury report is that the history of fire arm as told by injured is to be confirmed. Thus, it is clear that at the time of examination of injured, even the doctor examining injured was not clear as to whether the lacerated wound as noticed above i.e. ½ cm x 0.3 cm x muscle deep could be that of firearm or not. Be that as it may, since the matter is at the investigation stage, it is not proper to express any opinion thereon. On injured being examined by the Radiologist, the Radiologist was also of the opinion that shadow seen in lower half of left thigh and no any bony injury seen. Be that as it may, the other injured is wife of complainant Smt. Indradevi who alleged to have suffered three injuries, one by sharp and two by blunt and they have been assigned to either Kaluram or Dayaram who have already been arrested and released on bail under Section 439 Cr.P.C. So far as Dinesh son of the complainant is concerned, no visible injury has been suffered by him, he was only complaining of pain over back of left knee. Thus, from the perusal of the police investigation diary, it appears that the case as set up by the complainant has not been believed at various stages by the police during investigation by the 8 various investigating officers. At any rate, up to the non-petitioners having been granted bail under Section 438 Cr.P.C. there being no material of having indulged in commission of any crime or misuse of liberty of bail, and therefore, in my view, no case for cancellation of bail already granted to the non-petitioners is made out. Consequently, all the three applications seeking cancellation of bail are dismissed. (H.R.PANWAR), J. rp