Brij Nandan Jaiswal vs Munna @ Munna Jaiswal & Anr

2. The order granting bail to the accused Munna @ Munna Jaiswal passed by the High Court is in challenge here. The respondent - accused Munna is facing a prosecution for the offences under Sections 302, 504 & 506 I.P.C. in Crime Case No. 152 of 2006 of Police Station Chakia. It is alleged that on 15.12.2006 at about 4.45 p.m., a report came to be lodged regarding the incident that took place at 2.00 p.m. on the same day wherein it was alleged by complainant Brij Nandan Jaiswal that his son alongwith Bechan and Balmukund went to cut woods in the forest and while they were coming back from the forest on bicycles, Brij 2 Nandan and Bal Mukund were leading while complainant's son Jai Shankar was following them. When they all reached Jabelia Mode, Jai Shankar shouted very loudly. At that time, the complainant and his companions saw that Jai Shankar was being inflicted blows with lathis, danda and iron rods by Lalji and his son Kallu @ Vinod, Munnu @ Munna and one other unknown person. On seeing the complainant party, all the four ran away towards forest threatening the complainant and his companions. While Jai Shankar was being taken for treatment, he died at about 3.00 p.m. The three accused persons were taken into custody between 03.01.2007 to 05.01.2007. Investigation proceeded during which the lathi was discovered. It was found that the accused had assaulted the complainant's family twice and even those cases were pending and charge sheets were filed in those cases. Apart from that, the accused Munna was also involved in a gambling case. The post-mortem report showed that the deceased had sustained several injuries and that Jai Shankar had died due to hemorrhage and resultant shock.

3. A bail application was filed before the Sessions Judge who rejected the same. It was urged before the Sessions Judge that the seven injuries were found on the hands and feet of the deceased and as such it could not be said that this offence could be brought under 3 Section 302 I.P.C. It was also urged that the alleged 4th person in the complainant's party was not located. The Sessions Judge took the view that the accused had criminal history. The Sessions Judge also found that it was broad day light murder and since the witnesses had seen the murder been committed on account of the old enmity, the accused was not entitled to bail.

4. The High Court, however, in a very short order came to the conclusion that the accused was entitled to be released on bail. The High Court seems to have noted the arguments on behalf of the accused respondent that there was no motive or intention to commit the alleged offence and that there were three others also who had caused injuries by iron rods, lathi and danda and the deceased received the injury on the non-vital part of the body.

7. It is now a settled law that complainant can always question the order granting bail if the said order is not validly passed. It is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also. In our opinion, therefore, the complainant could question the merits of the order granting bail. However, we find from the order that no reasons were given by the learned Judge while granting the bail and it seems to have been granted almost mechanically without considering the pros and cons of the matter. While granting bail, particularly in serious cases like murder some reasons justifying the grant are necessary.

8. Therefore, without expressing anything on the merits of the bail application, we would chose to set aside the order granting bail and 6 direct the High Court to decide the application again. The accused shall immediately surrender within one week from today. If he does not surrender, a non-bailable warrant shall be issued against him. After his surrender, the bail application shall be considered by the High Court again.

9. We, therefore, allow this appeal to the limited extent as we have indicated. The bail application shall be disposed of within two weeks of the surrender of the accused or as the case may be of his arrest.

December 19, 2008.