BASHIR Vs. STATE OF HARYANA

JUDGEMENT

(1.) This appeal is by special leave by the three appellants against the judgment of the High Court of Punjab and Haryana in Criminal Miscellaneous No. 4090-M of 1976 dismissing an application under S. 439, Criminal Procedure Code, praying that the appellants be released on bail during the pendency of their trial in a case under S. 304 read with S. 148, I.P.C.

(2.) The facts of the case are briefly as follows. The three appellants, Bashir, Kundan and Sadiq, along with eight others are being prosecuted for offences under S. 302 read with S. 149, S. 347 read with S. 149 and S. 143 read with S. 147, I.P.C. for causing the death of one Sagru and grievous and simple injuries to three others. While eight others were released on bail, the appellants were refused bail as it was alleged that they caused injuries to Sagru. The First Information Report of the offence was lodged on Dec. 2, 1975 and the three appellants and eight others were arrested on the same day. Though the other eight accused were released on bail, the bail application of the three appellants was rejected by the Sessions court on December 15, 1975. The High Court also declined to release them on bail by an order dated Feb. 5, 1976. But as no challan was filed by the police in the case within sixty days from the date of the arrest of the appellants they were released on bail on Feb. 23, 1976 under S. 167 (2) of the Cr. P.C. Subsequently the police filed a challan and the Magistrate committed all the eleven accused to the Sessions Court and released them including the appellants on bail.

(3.) The complainant filed an application, out of which this appeal arises before the Sessions court for cancellation of the bail to the three appellants on the ground that their petitions for grant of bail were rejected on merits both by the Sessions Court and the High Court. The Sessions Judge relying on a decision of the Punjab High Court reported in 1975 Pun J (Crl) 143, Ajaib Singh v. State of Punjab, held that the consideration for grant of bail at the stage when no report under S. 173, Cr. P.C., was filed were entirely different because if the report is not produced within two months, the court has no option but to grant bail to the accused howsoever the heinous nature of the offence may be. Holding that when once a report under S. 173, Cr. P.C. is filed by the police the Court has jurisdiction to cancel the bail allowed the application of the complainant and cancelled the bail. (sic)