NAWAB KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS miscellaneous petition is directed against the order dated January 30, 1990, passed by the Munsif and Judicial Magistrate, First Class, Ladnu, by which the learned Magistrate rejected the bail application file by the petitioners and refused to enlarge them on bail under Section 167 (2)Crp. C.

(2.) GORDHAN Gurjar, on October 19, 1989, filed a written report at Police Station, Ladnu, to the effect that the accused petitioners alongwith other co-accused armed with sword, Barchhis as Lathis, passed through the lane where the complainant alongwith his brother Bhagirath and son Ladu Lal was sitting. After sometime, he heard a noise that some persons are burning the ice factory. When he went there, forty to fity Mohammedan persons were destroying his factory bringing the wood from inside the factory and were burning the wood. On seeing the complainant party, the acccused party tried to kill them, but complainant party rescued themselves by hiding themselves in the house of one Sanwat Ram and saw the incident from the roof of the house of Sanwat Ram. In the meanwhile, his son Kailash Gurjar came on a bicycle. The rioter encircled him and exclaimed to kill him, whereupon Nawab Khan inflicted sword blow on Kailash Gurjar and Kailash on receiving the injuries, fell down. Forty-fifty persons of the accused party including the 17 named persons, after inflicting injuries on Kailash, went away. After they had gone, Kailash Gurjar was taken to the hospital, were he died. On the basis of this report, a case under Section 147, 148, 149, 307, 302 & 450 I. P. C. was registered against the accused-petitioner Nawab Khan, Anish Ahmad, Mahboo Ali, Sumer Khan, Sardar Khan, Aazam Ali, Babu Khan, Iqbai Khan, Fattu Khan, Chand Khan, Banne Khan, Aziz Khan, Babu Khan S/o Shri Alladeen Khan, Aamin Khan, Iliyas Khan, Mustak Khan and Ayub Khan. During the course of investigation, the accused Nawab Khan, Aziz Khan, Anish Ahmad. Mahboo Ali, Sumer Khan, Sardar Khan. Aazam Ali, Babu Khan, Iqbal Khan, Fattu Khan, Chand Khan, and Banne Khan were arrested. on October 20, 1989. The accused Babu Khan S/o Alladeen Khan Aamin Khan and Iliyas Khan were arrested on October 21, I989 and the remaining accused Ayub Khan and Mustak Khan were arrested on October 22, 1989. The police, after necessary investigation, presented the challan against the 17 accused - petitioners on January 8, 1990 in the Court of the Munsif and Judicial Magistrate, First Class, Ladnu, in which it was, also mentioned that the investigation with respect to the other accused is going on and further report under Section 173 (8) Cr. P. C. will be submitted after completion of the investigation. The learned Magistrate, by his order dated January 23, 1990, took cognizance against the present accused-petitioners though the challan was presented by the police on January 8, 1990, The petitioners, on January 27, 199, moved an application under Section 167 (2) Cr. P. C, to release them on bail. The learned Magistrate dismissed the bail application filed under Section 167 (2) Cr. P. C. by his order dated January 30, 1990, as according to the learned Magistrate, the provisions of Sect on 167 (2) Cr. P. C. were not available in the case of the petitioner. It is against this order that the present petition under Section 482 Cr. P. C. has been filed for releasing the accused-petitioners on bail.

(3.) IN Hussainara Khatoon V. The State of Bihar (supra) the controversy before the Hon'ble Supreme Court was that certain under-trial prisoners remained in jail without bail for the maximum term for which they could have been sentenced it convicted and such persons had been in detention for the period longer than the maximum term of sentence as prescribed in proviso to Sec. 167 (2) Cr. P. C. when their trial having been commenced and the Supreme Court after considering the various provisions, held that if the accused is in detention for 60 days or 90 days, the Magistrate before making an order for further remand to judicial custody point out to the under trial prisoner that he is entitled to be released on bail. IN that case before the Supreme Court, the accused remained in jail without trial for a period longer than the maximum term for which they could have been sentenced and even in that case the cognizance was not taken and, therefore, the Hon'ble Supreme Court ordered for the release of the accused forthwith from detention. This authority is thus, also, of no help to the petitioners as it is not applicable in the facts and the circumstances of the case.