Brij Nandan Jaiswal vs Munna @ Munna Jaiswal & Anr

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.

5. The High Court, thus released the respondent on bail. Feeling

aggrieved, the complainant had filed this Special Leave Petition.

6. It is argued by the learned counsel appearing for the

complainant that the accused had criminal history and that there

were criminal cases pending against him. It is pointed out by the

learned counsel that even earlier since there was an apprehension of 4

attack, the son of the petitioner Karnala Prasad had already moved

an application on 17.03.2006 for providing protection to petitioner's

family from the accused persons. However, no action was taken.

Learned counsel further contends that on 28.05.2006, the accused

had assaulted deceased with intention to commit murder and crime

case no. MCR 75/06 was registered. It is further pointed out that on

03.06.2006, the wife of the deceased Jai Shankar had also moved an

application for protection to her husband and his family as the

accused had given threat to kill him. It is further pointed out that on

17.07.2006, the accused no. 1 was bound by Sub Divisional

Magistrate under Sections 107 and 116 Cr.P.C. for not committing

breach of peace. It is also pointed out that again on 31.07.2006, the

accused inflicted injuries by lathi and knife on the chest of the

deceased for which Crime No. MCR No. 108/06 was registered

against him in which chargesheet was also filed for offences under

Sections 323 and 504 I.P.C. The learned counsel points out that

while granting bail, the bitter enmity was not taken into consideration

by the High Court and the High Court mechanically proceeded to

grant the bail to the accused. On the other hand, it was urged by

the defence counsel that while it was true that there was enmity

between the two families, it could not be forgotten that they were

relatives of each other and due to enmity, the allegations were made 5

and criminal cases were inflicted. It is further urged that even after

the bail was granted, there was no incident and therefore the

apprehension on the part of the complainant was ill founded. It was

also pointed out that the prosecutions faced by the accused were of

insignificant crimes and there was no allegation against the accused.

Learned counsel also urged that there was no justification for

canceling the bail once granted.

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.

......................................J. (Tarun Chatterjee)

......................................J. (V.S. Sirpurkar)

New Delhi;

December 19, 2008.

7

Digital Performa

Case No. : Cr. Appeal No. ........./2008 SLP(Crl.) No. 5126 of 2007

Date of Decision : 19.12.2008

Cause Title : Brij Nandan Jaiswal Versus Munna @ Munna Jaiswal

Coram : Hon'ble Mr. Justice Tarun Chatterjee Hon'ble Mr. Justice V.S. Sirpurkar

C.A.V. On : 18.12.2008

Order delivered by : Hon'ble Mr. Justice V.S. Sirpurkar

Nature of Order : Reportable 8