Sandeep and anr. Vs. State of Rajasthan - Court Judgment

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criminal procedure code, 1973 - sections 437, 438 & 439--bail-powers of court--no straight jacket formula can be evolved for granting bail in non-bailable offence--but court should strike balance between the liberty of the accused and the collective interest of the society--bail granted to co-accused overlooking law laid down by supreme court--in facts and circumstances accused were not entitled to bail.;bail petition dismissed - - it provides at least some degree of certainty upon which individuals can rely in the conduct of the affairs, as well as a basis for orderly development of legal rules.shiv kumar sharma, j.1. accused petitioners sandeep and ram kumar have preferred this third bail petition. first and second bail petitions were respectively dismissed by this court on july 4, 2000 and july 18, 2000. second bail petition has been filed on behalf of accused petitioner naresh son of jagdish. first bail petition of accused petitioner naresh was dismissed by this court on july 21, 2000. as both the petitions relate to one fir no. 15/2000, they were heard analogously and i propose to decide them by a common order.2. an fir was registered with the police station sadar jhunjhunu in connection with the murder of a candidate birbal singh, an old man of 75 years on the date of polling of panchayat elections. the murder was committed in broad day light on january 29, 2000 in a thickly populated area. according to prosecution case harphool singh accused was the main rival of birbal singh in the said election. on account of political enmity harphool singh alongwith 33 accused formed unlawful assembly and came to village bhimsar around 12.00 noon in three jeeps. they killed birbal singh and his body was taken away by them. as per post mortem report birbal singh died due to extensive hemorrhage caused by 31 multiple injuries on all parts of his body including head and chest.3. it was argued on behalf of accused petitioner naresh in the first bail application that his case and the case of coaccused indra raj singh and intjar, who were released on bail, stood on same footings, therefore, petitioner naresh also entitled to be released on bail. in the order dated july 21, 2000 while rejecting the said argument it was indicated that while considering application for bail, a balance has to be stuck between maintenance of social order and liberty a person. 'law of bails' should balance between two conflicting demands viz. shielding the society from misadventures of persons allegedly involved in crime and presumption of innocence of the accused till he is found guilty. no straight jacket formula can be evolved for granting bail in non-bailable cases. parity may be one ground looking to the desirability of consistency but it cannot be the sole ground for granting bail. this court granted bail to indra raj singh and intzar by prejudging the evidence which was yet to come on record. in chintaman dighe's case (air 1991 sc 1603) their lordships of the supreme court while dealing with an order of designated court granting bail to the accused, observed that the learned designated judge grossly erred in foreclosing the trial by prejudging the evidence which was yet to come on record and acted illegally in appreciating the statements of witnesses and material collected by the investigating officer. argument of parity did not find favour in view of ratio of chintaman's case (supra) and bail to accused petitioner naresh was declined.4. mr. bajranglal sharma, learned senior advocate appearing for the petitioner naresh canvassed that there should be a certainty and consistency in judicial orders. the judicial decorum demands that where an hon'ble judge does not agree with the order of a co-ordinate jurisdiction, the matter should be referred to a larger bench. in view of this the bail petition of the petitioner naresh ought to have been referred to larger bench if this court did not agree with the bail order of indra raj singh and intjar. reliance was placed on sunderjas kanyalal bhatija v. collector thane (1939) 3 scc 396, gopabandhu biswal v. krishna chandra mohanty : [1998]2scr1108 and vishnu traders v. state of haryana 1995 supp. (1) scc 461. learned counsel further contended that these charge-sheets in the case have been filing...many as nine accused persons named in the fir have been dropped by the investigating agency, therefore, the petitioner be released on bail.5. mr. jagdeep dhankar, learned senior advocate appearing for the accused petitioners sandeep and ram kumar urged that at the time of declining bail to the petitioners second time on september 18, 2000 this court observed that as the investigation was kept pending under section 173(8) cr.p.c. it can not be accepted that the prosecution has not believed the story that the other occupants of jeep had not taken part in the occurrence. now the investigation is complete in all respect, three charge sheets have been filed and the investigating agency dropped payare lal, raj kumar, sonu, sanjeev, rajeev, mohan singh, nemi chand, harish and sukh deo who were named in the fir. pyare lal, sandeep, rajeev and rajkumar who allegedly alongwith the petitioners sandeep and ram kumar were on jeep no. rj 31 c 0129 having been dropped, the petitioners deserve to be released in view of this important change of circumstance. learned counsel next contended that for a period of one year even arguments on charge have not been heard and the constitutional right of speedy trial given to the accused petitioners has been violated.6. mr. s.r. bajwa, learned senior advocate on the other hand urged that the accused petitioners can not take advantage of the lapses on the part of investigating agency. if the investigating agency is bungled, the accused is not entitled to any benefit. referring to sections 225 and 319 cr.p.c. learned counsel contended that the prosecution is not bound by the lapses of investigating agency. the court of sessions under section 319 cr.p.c. can take cognizance against the accused who is left out by the investigating agency. learned counsel placed reliance on hukam singh v. state of rajasthan jt 2000 (10) scc 411 and state of w.b. v. mir mohammed omar : 2000crilj4047 . learned counsel next contended that the accused persons themselves are responsible for delaying the trial. they sought adjournment after adjournment for making arguments over charge and thereafter moved transfer application seeking transfer of a case from the court of sessions judge to the court of additional sessions judge.7. i have pondered over the rival submissions and scanned the material on records.8. deducible principles emerge from the cases sundarjas kanya lal bhatija (supra) gopabhandhu biswal (supra) and vishnu traders (supra) may be summarised thus(a) the judicial decorum and legal propriety demand that where a single judge or a division bench does not agree with the decision of a bench of co-ordinate jurisdiction, the matter shall be referred to a larger bench.(b) the use of the precedent is an indispensable foundation upon which to decide what is the law and its application to individual cases; it provides at least some degree of certainty upon which individuals can rely in the conduct of the affairs, as well as a basis for orderly development of legal rules.(c) in the matters of interlocutory orders, principle of binding precedents cannot be said to apply. however, the need for consistency of approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievances of discriminatory treatment requires that all similar matters should receive similar treatment except where factual differences require a different treatment so that there is assurance of consistency, uniformity, predictability and certainty of judicial approach.9. i am of the considered opinion that in our system of judicial review, which is a part of our constitutional scheme, the legal questions must be determined with reasons which carry convictions within the courts, profession and public. the doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions. but there is yet another doctrine of per incuriam which provides that where a court omits to consider a binding precedent of the superior court rendered on the same issue or omits to consider any statute while deciding that issue, the said decision of the court should be ignored. in court of a.p. v. satyanarayana rao : (2000)iillj545sc it was propounded by their lordships of the supreme court that a case cannot be referred to a larger bench on mere asking of a party. the rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.10. while granting bail to co-accused indra raj singh and intzar, principles lald down by their lordships of the supreme court in state of maharashtra v. chintaman dighe (supra) were overlooked and the evidence collected by the investigating agency was prejudged therefore, doctrine of per incuriam got attracted. mr. bajrang lal sharma, learned senior advocate made attempt to distinguish chintaman dighe's case but i am unable to persuade myself to agree with the submissions urged by him before me. from the record it is exfacie established that murder of a candidate aged 75 years was committed on the polling day in a broad day light in a thickly populated area. the alleged dare devils who have no regard to law are not entitled to be released on bail. i again reiterate that while deciding bail petition the court should strike balance between the liberty of the accused and the collective interest of the society.11. that takes me to the other contentions advanced by the learned counsel. i wish to refrain myself from making any comment in respect of alleged lapses of the investigation. their lordships of the supreme court in state of w.b. v. mir mohammed omar (supra) indicated that the function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officer. efforts should be made by courts to see that criminal justice is salvaged despite defects in investigation. i also do not wish to express my view in respect of discretion accorded to the public prosecutor by the code of criminal procedure. as the chargesheets have already been filed, it is now for the learned trial court to look into the matter in accordance with law. the accused petitioners are entitled to speedy trial but they are equally expected to assist the trial court to act speedily.12. for the aforesaid reasons, i do not find any merit in the bail petitions, they are accordingly dismissed.