Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.5658 of 2013 ====================================================== Md. Rizwan @ Raja, S/o Late Md. Reza, R/o Village- Ekmighat, P.S. Bahadurpur, Distt. Darbhanga. The State Of Bihar Versus .... .... Petitioner/s .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Md. Nadim Seraj, Adv. For the State : Mr. Mustaque Alam, A.P.P. ====================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL ORDER 3 05-04-2013 Heard learned counsel for the Petitioner and the State. The Petitioner seeks bail in a case instituted for the offence under Sections 147, 148, 149, 302 Indian Penal Code and Section 27 of the Arms Act. On 8.10.2012 one Md. Nahir instituted a case against nine persons including the Petitioner of having committed the murder of Md. Bhola. He did not allege any specific overt act against any of the accused persons. During investigation, Ishrat Jahan and Rubi Perween were examined as eye witnesses in Pragraphs-57 and 58 of the case diary on 17.10.2012, wherein
Legal Reasoning
they stated that Jugnu had fired which caused the death of the deceased. However, they also named the Petitioner but without any specific overt act. On 25.10.2012, Md. Jamal Khan i.e. the brother of Patna High Court Cr.Misc. No.5658 of 2013 (3) dt.05-04-2013 2/5 the deceased was examined in Paragraph-70 of the case diary who did not name the Petitioner. However, before his statement was recorded under Section 161 Cr. P.C., the said Md. Jamal Khan filed a Complaint Case No. 2112 of 2012 on 12.10.2012 i.e. 4 days after occurrence purporting to be an eye witness, wherein he named the present Petitioner as one of the assailants of the deceased along with Shams Tabrez. He also named the Informant of the present case as one of the accused persons. On 29.10.2012 i.e. 21 days later, Md. Jamal was once again examined under Section 161 Cr. P.C. in Paragraph-117. He deposed as an eye-witness and alleged that the Petitioner had fired at the deceased in the stomach. In Para 118, Munni Begum, mother of the deceased was examined. It is not clear as to whether she claims to be an eye witness. However, she stated generally that Petitioner and other accused fired at her son. In Para 119 Gulshan Perween, wife of deceased was examined but she did not state anything about the occurrence. In Para 122 Ishrat Jahan was examined as an eye witness. She alleged that Rizwan shot at the stomach of the deceased and co-accused Jugnu on the forehead. In Para 123, Rubi Parween, daughter of Ishrat Jahan, was examined as an eye-witness and supported the version of her mother and added that Naheed also shot on the stomach. Patna High Court Cr.Misc. No.5658 of 2013 (3) dt.05-04-2013 3/5 The submission of the Petitioner is that there is no specific overt act alleged against him in the First Information Report. No doubt, subsequently, the Informant was also arrayed as an accused by the brother of the deceased but when his own statement was recorded under Section 161 Cr. P.C., in the first statement, he did not name the Petitioner whereas in the second statement, he stated that the Petitioner had fired. Similarly, the statements of the witnesses recorded under Section 164 Cr. P.C. reveals that there is major contradiction with regard to the assailants of the deceased whereas the mother of the deceased stated that Neyaz fired, both, on the stomach and on the head of the deceased. Jamal stated that only the Petitioner fired at the deceased and Rubi Perween as well as Ishrat Jahan stated that both, i.e. the Petitioner and Jugnu fired at the deceased. It is under these circumstances, the counsel for the Petitioner submits that the Petitioner deserves to be released on bail. On the other hand, the counsel for Md. Jamal Khan, brother of the deceased submits that the Police in collusion with the accused persons had recorded the statement wrongly and, therefore, the Petitioner who has criminal antecedents, does not deserve to be released on bail. He, however, has no explanation of Patna High Court Cr.Misc. No.5658 of 2013 (3) dt.05-04-2013 4/5 the contradictory statement recorded under Section 164 Cr. P.C. Considering the submission, let the Petitioner above named, be released on bail on furnishing bail bond of Rs. 5,000/- (Five thousand) with two sureties of the like amount each or any other surety to be fixed by the Court below to the satisfaction of Chief Judicial Magistrate, Darbhanga, in connection with Bahadurpur P.S. Case No. 373 of 2012 subject to the following conditions: (i) That one of the bailors will be a close relative of the Petitioner who will give an affidavit giving genealogy as to how he is related with the Petitioner and the other shall be the wife of the Petitioner. The bailor will also undertake to inform the Court if there is any change in the address of the Petitioner. (ii) That the bailor shall also state on affidavit that he will inform the court concerned if the Petitioner is implicated in any other case of similar nature after his release in the present case and thereafter the court below will be at liberty to initiate the proceeding for cancellation of bail on the ground of misuse. (iii) That the Petitioner will give an undertaking that he will receive the police papers on the given date and be present on date fixed for charge and if he fails to do so on two given dates and delays the trial in any manner, his bail will be liable to be cancelled for reasons of misuse. (iv) That the Petitioner will be well represented on each Patna High Court Cr.Misc. No.5658 of 2013 (3) dt.05-04-2013 5/5 date and if he fails to do so on two consecutive dates, his bail will be liable to be cancelled. In view of the antecedents of the Petitioner, the Petitioner is directed to appear before the Superintendent of Police, Darbhanga, within fifteen days of his release with a copy of this order and every two weeks thereafter for the next one year. The conduct of the Petitioner will be kept under watch in this period by the Superintendent of Police concerned and if it is found wanting in any respect, a report shall be made to the court concerned by him to initiate a proceeding for cancellation of bail for reasons of misuse of bail. After reporting to the Superintendent of Police, a certificate will be filed by the Petitioner before the court concerned. S.Ali (Anjana Prakash, J)