PT MADAN LAL SHARMA Vs. RAKESH KUMAR

JUDGEMENT

(1.) THIS revision has been preferred by the father of the deceased Anoop Kumar alias Pinta seeking setting aside/ cancellation of bail order dated 01 -11 -2001 in respect of accused Rakesh Kumar, formulated by 2n Additional Sessions Judge, Jammu in case entitled State Versus Rakesh Kumar and another, for offence under Sections 302/34 RPC.

(2.) FACTS of the case, the necessary narration of which in resume may be noticed. The occurrence is stated to have taken placed on 30 -01 -1997 in which Anop Kumar alias Pinta son of the petitioner was murdered by respondents -1 and 2 along with Romesh Chander, who is absconding. A case under Sections 302/34 RPC stood registered on the FIR lodged by the petitioner in this behalf in Police Station, R.S.Pura. on the conclusion of investigation, challan against all the three accused were presented before Munsiff, Judicail Magistrate, R.s.Pura who in turn committed the same to the court of Sessions Judge, Jammu and subsequently stood transferred to 2n Additional Sessions Judge, jammu for trial. By order dated 14 -11 -1998, respondents -1 and 2 were charged under Sections 302/34, whereas accused Romesh Chander was preceded under Section 512 Cr. P.C for having absconded for the commission of offence of murder. During the trial, statements of 11 out of a total 24 witnesses have been recorded. The evidence collected by the prosecution of four eye -witnesses, namely, Madan Lal, petitioner, Sanjeev Kumar, Vipin Kumar and Nirmal Kanta, wife of the petitioner. Out of whom, statements of three witnesses have been recorded. The evidence of Nirmal Kanta is stated to have not been recorded on account of mental ailment because of her sons death. It appears that while the prosecution evidence was still to be completed, respondents applied for their release on bail. The 2 Additional Sessions Judge, Jammu, passed order dated 01 -11 -2001 and allowed the application by admitting the accused to bail. The father of the deceased, whose statement as prosecution witness has been recorded, has assailed the legality and propriety of the order granting bail without assigning sound and justifiable reasons at the time when the evidence of other material witnesses including the eye -witnesses is still to be recorded. It is further stated that the evidence provided by the witnesses, have cogently implicated the respondents -accused and Romesh Chander, who is absconding in the murder of the son of the petitioner. That ever since the accused are released on bail, they are misusing the concession intimidating the witnesses whose evidence is yet to be recorded.

(3.) MR . C.M. Gupta, learned counsel appearing for the petitioner, has vehemently argued that the 2n Additional Sessions Judge has arbitrarily exercised the discretion in granting bail, without application of mind and adverting to the evidence of the witnesses recorded during trial in proper perspective. Lastly, it was submitted that the manner in which the bail has been granted clearly smacks of impropriety and capriciousness of the Trial court.