IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14216 of 2008 JITENDRA SWAMI Versus STATE OF BIHAR ----------- 9. 4.12.2008 Heard Mr. Kanhaiya Pd. Singh, learned senior advocate for the petitioner, Mr. Tara Kant Jha, learned senior advocate for the informant and Mr. Dilip Kumar Sinha, learned A.P.P. The petitioner Jitendra Swami is an acused in Maharajganj P.S. case no.14 of 2000 under sections 304, 302, etc. of the Indian Penal Code. The case relates to the abduction of one Bharat Singh, who happened to be the brother of the informant, by pulling him out of a Sumo vehicle and putting him into a Bolero vehicle and taking him away. It is not disputed that the said Bharat Singh is yet to be traced out. What appears from the submission made by Sri K.P. Singh, learned senior counsel for the petitioner, is that another case was also lodged for the disappearance of the said Bharat Singh. Thus, this fact appears undisputed that Bharat Singh was abducted, as per the prosecution, by the petitioner and as per the defence by someone else in which incident one Upendra Singh was shot by fire arms while the said Bharat Singh and others were attempting to grab booth Nos. 61 and 62 on the day of the legislative assembly elections. It also appears that the prayer for bail of the petitioner under section 438 of the Code of Criminal Procedure was dismissed by this Court and that under section 439 of the Code of Criminal Procedure was also dismissed by this Court as per details - 2 - appearing in the earlier order dated 17.9.2008. By virtue of this order the petitioner was directed to be released on bail in the backdrop that the petitioner’s quashing petition and another petition preferred by his father were awaiting hearing by this Court and there had been a stay order passed in the quashing petition preferred by the present petitioner. That the petitioner assailed the order refusing prayer for bail before the Supreme Court is yet another fact of the present petition and that order, the petitioner has placed as one of the annexures to his petition as Annexure-1/A and which was passed in S.L.P.(Criminal) No.4293 of 2007 on 8.10.2007 by which the Special Leave Petition to Appeal was dismissed. The earlier prayer for bail of the petitioner was dismissed by Hon’ble Sri Justice Madhvendra Saran in Miscellaneous Petition no.35138 of 2006 on its merit. The petitioner preferred, as indicated above, the quashing petition so as to challenging direction of framing of charges by the court of sessions and while directing the petition to be heard and notice be issued, it is indicated that an order of stay in the court below of the further proceeding was also granted. The petitioner appears taking this as a ground for bail. Hon’ble Sri Justice Saran directed release of the petitioner considering in particular the aspect of stay of proceedings in the trial court for a period of two months, i.e., till 17.11.2008 and, accordingly, the petition has been listed before me. - 3 - The contention is that the petitioner could not be released in effect on account of that order inasmuch as he was already remanded in another case. This petition is listed before me on account of superannuation of Hon’ble Sri Saran,J. I was taken through the entire material collected in the case diary by Sri K. P. Singh, learned senior advocate for the petitioner, Sri Dilip Kumar Sinha, learned A.P.P. and Sri Tara Kant Jha, learned senior counsel for the informant. Being new to the facts of the case, I could allow the learned counsel for the parties to traverse the whole factual length of the case, so that I could be posted with the facts of the case in which the petitioner has been made an accused. There is a direct allegation against the petitioner in the F.I.R. that he pulled out the deceased Bharat Singh from a Sumo vehicle and put him in his Bolero vehicle and fled away. Bharat Singh is traceless. There was a support of the witnesses to the occurrence that the said Bharat Singh had gone to the hospital for enquiring about an injured voter, who had received injury in explosion during the voting hours. The personal guard of the petitioner also appears supporting the allegations. Subsequently, some witnesses, who had earlier supported the one part or the whole of the occurrence, appear turning around and taking a different stand by speaking different facts, which could be detrimental to the prosecution and which could be opposite their earlier statements. One need not pointing out that at the stage of hearing a prayer for bail the allegations are - 4 - to be searched out so as to finding out whether there is a support of the allegations or not . This Court finds, after having gone through the order of this Court passed earlier in the facts and circumstances of the case and of the Hon’ble Supreme Court also, that the petitioner could have little chance of getting bail. Further aspect of the matter is and that is otherwise the submission also, that the quashing petition is pending and the proceedings are stayed and , as such, it could be simply hardship to the petitioner that he is kept in confinement with no further development in the proceeding. I find that it was the petitioner who had challenged the order passed by the learned Trial Judge in the quashing petition and obtained a stay. It could have been within the fairness of the petitioner, had he approached the Bench, which was seized with the quashing matter, to have got an early disposal of the petition. The petitioner appears filing the petition and obtaining the stay and again he is complaining against the stay also that he could not be incarcerated on account of that stay. As things stand and in the facts and circumstances of the case and also the proceedings which have been taken by the petitioner to different courts, I do not find that the bail granted to the petitioner could be extended. The petition is dismissed. It was pointed out that the stay matter and the quashing petition await disposal merely because the case diary is not being made available to the Bench, which is seized with the quashing - 5 - petition. Office shall immediately place the case diary before the Hon’ble Judge who is seized with Miscellaneous petition no.3705 of 2008. Sudip ( Dharnidhar Jha,J )