ORDER
K.K. Verma, J.
1. This is a complainant’s revision from an order of bail under Section 439, Criminal Procedure Code passed by the 4th Additional Sessions Judge, Gwalior, in bail application No. 2328 of 1990 decided on 16 -10-1990.
2. Non-applicant 2 Ramgopal was a police constable at P.S. Bilawa (District Gwalior). On or about 18th February 1979 Balbhadrasing was shot at village Sikroda in the morning of 18th February 1979. The First informant, a cousin of deceased Balbhadra Singh named N.A. 2, Ramgopal as the man who had shot Balbhadra Singh. Ramgopal’s brother Harbhajan was allegedly present with Ramgopal. It is not in dispute that Antri Police had showed the aforementioned Harbhajan Singh as the sole accused, because N. A. 2 Ramgopal was described by the police as an absconding accused. The Sessions Case (S.T. No. 103/80) was decided by the then 4th Additional Sessions Judge, Gwalior on 8-12-1980. He acquitted Harbhajan Singh of the charge under Section 302 read with Section 34, Indian Penal Code.
3. Admittedly N. A. 2 Ramgopal was arrested by the Bhind Police on or about 31st August 1990. The Antri Police have rearrested him in Crime No. 12/79 under Section 302/34, Indian Penal Code relating to murder of Balbhadra Singh. On 11 -9-1990, Ramgopal made an application under Section 439, Criminal Procedure Code before the Sessions Judge, Gwalior. The 4th Addl. Sessions Judge, Gwalior heard applicant’s counsel and the Additional Public Prosecutor with the record of S.T. No. 103/80 decided on 8-12-1980. After setting out the principal allegations against Ramgopal, the learned Judge set out names of the prosecution witnesses at paragraph 7 of his order. The reasons for admitting N. A. 2 Ramgopal to bail were set out by him at paragraphs 8, 9 and 10 of his order which run as follows:–
8- bl U;k;ky; }kjk mijksDr lHkh lkf{k;ksa ds
vfHkdFkuksa ij vfo’okl djrs gq, lg&vkjksih gjHktu dks fu.kZ; fnukad
8&12&1980 ds vuqlkj cjh dj fn;k x;k FkkA
– ;g fd Vk;y djhcu 10 lky iqjkuh gS
vfHk;kstu dh vksj ls ,slk dksbZ dj.k ugha crk;k tk ldrk fd vkosnd vkjksih ds fo:)
fxjrkjh djus ds iz;kl fd;s x;s vkSj vkjksih Qjkj gks tkus ls Vk;y vlaHko gks
xbZ FkhA 10 lky dh le;kof/k dkQh yach le;kof/k gSA ;fn] vkjksih Qjkj Fkk] rc
vkjksih ds fo:) /kkjk, 82 ,oa 83] naM izf;k lafgrk ds varxZr dk;Zokgh dh tkuh pkfg,]] ijarq vfHkys[k ds vk/kkj ij /kkjk,W 82 ,oa 83] naM izf;k lafgrk dh dk;Zokgh dh tkuk
ugha ik;h tkrh gSA
10- ;g fd] izdj.k ds fujkdj.k esa le; yxus dh
laHkkouk gSA vkosnd@vkjksih dks djhcu 3 ekg ls U;kf;d fujks/k esa ik;k x;k gSA
vfHk;kstu dh vksj ls lkjs vuqla/kku fd;s tkus ds fy, u rks fuosnu fd;k x;k gS
vkSj u gh vuqla/kku ds fy, vkosnd@vkjksih dh vko’;drk gh crykbZ xbZ gSA ftu
xokgku dk ijh{k.k gks pqdk gS mldks 10 lky Hkh gks pqds gS ijh{k.k xokgku esa
ls dqN ‘kkldh; lkf{k;ksa dk b/kj m/kj vkarfjd gksus dh laHkkouk gSa vkSj bu
ifjfLFkfr;ksa esa fuf’pr :i ls vf/kd le; yx ldrk gSA pwfd ijh{k.k xokgku ds
dFkuksa dk bl U;k;ky; }kjk vfo’okl fd;k tkdj lg&vkjksih gjHktu dks cjh dj
fn;k gSA
4. Now, the learned Judge laid stress exclusively of the trial Judge’s non-acceptance of the prosecution version as against co-accused Harbhajan, who had been tried on a charge for the offence of murder with the aid of Section 34, Indian Penal Code. This consideration was, however, extraneous to the matter of consideration of the bail of present N.A. 2, Ramgopal. In fact, the learned Additional Sessions Judge did not advert to the judgment in S.T. No. 103/80 where at paragraphs 9 to 11, the trial Judge had held that it was the aforesaid Ramgopal, who had shot Balbhadra Singh. Thus, the learned Additional Sessions Judge failed to consider the relevant part of the judgment.
5. At paragraph 9, the learned Additional Sessions Judge misapprehended the situation by assuming that there was in fact a trial with 10 years of duration. His view was that the State did not establish that any attempts were made by the police to apprehend the accused or that their record did not show that any proceedings under Sections 82 and 83 of the Criminal Procedure Code had been taken to draw Ramgopal into the open. All these considerations were totally irrelevant for the consideration of an application for bail of an accused who had been arrested in the case only about one and half months before the coming of the application for grant of bail. The learned trial Judge was wrong in saying that the applicant had been in judicial custody for about three months. It has been admitted before me that N.A. 2, Ramgopal, was arrested by the Bhind Police in some other cases about one and half months before his present application was decided. The considerations that the prosecution witnesses had been examined 10 years ago and that such of them as were in government service might have been transferred elsewhere were inept at this stage.
6. What is more, the learned trial Judge failed to consider the fact that the trial Judge had stated in his judgment that present N.A. 2, Ramgopal was an absconder in the case.
7. The learned Additional Sessions Judge failed to consider the seriousness of the allegations against N.A. 2, Ramgopal who, it has been said, stole a police rifle and used it as a weapon of offence.
8. In the result, the learned Additional Sessions Judge was led away by irrelevant or extraneous factors. Besides, he failed to take into consideration the nature and the manner of the commission of the offence alleged against N.A. 2, Ramgopal. Besides, he failed to consider that the N.A. 2, Ramgopal had been fleeing from justice for nearly a decade before he was caught in a different crime. Besides, after all he has been in custody only for one and half months. In fact, such a duration by itself, seen in the context of the surrounding circumstances, was wholly inadequate as an entitlement for grant of bail in a murder case.
9. It is apparent that the order of a learned fourth Additional Sessions Judge, Gwalior betrays a total lack of application of mind to the matter in hand. The order is not proper at all, it was a capricious exercise of judicial discretion vested in him.
10. Now I have been considering some cases of law cited on behalf of N.A. 2, Ramgopal.
11. In Damanbhai Dawoodbhai Memon and Ors. etc. v. State of Gujarat, 1988 Cr.L.R. SC 234, it was held that the refusal of a bail application does not operate as bar for renewing the plea for bail on a subsequent occasion.
12. So this ruling is of no help to the N.A. 2, Ramgopal.
13. In Shri Vallabh Vijayvargiya v. State of M.P., 1987 C.Cr.J. (M.P.), 71, it was held that where the bail is wrongly granted by a competent Court, it would be very difficult to cancel the bail order unless it could be shown that by reasons of certain supervening circumstances, it will be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial.
14. However, in the present case, the learned Additional Sessions Judge stayed operation of the bail order, subsequently, this Court also stayed the operation of the said bail order. Thus, in this case N.A. 2, Ramgopal, has not been enlarged on bail. Hence, the ruling is of no help to him.
15. The third case is Prahalad v. Mohan Singh, 1990 (II), MPWN 39. In that case (decided by me), I referred to Gurcharan Singh v. State, Delhi Administration, 1978 CAR 44 (SC), and extracted the following observations of their Lordships of the Supreme Court:–
“….. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Sections 437(1) and 439(1), Criminal Procedure Code, of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out.”
16. In Prahalad’s case, I pointed out that the learned Sessions Judge had not addressed himself to the angles formulated in the Supreme Court’s Judgment. In that case, I quashed the order of bail to some accused persons in a murder case because no reasons at all had been given by the learned Sessions Judge. This was done in the exercise of revisional jurisdiction vested in the High Court because the order was an improper one.
17. In fact, the aforementioned ruling does not support N.A. 2, Ramgopal, because his case has been dealt with by the learned fourth Additional Sessions Judge, Gwalior, by considering entirely extraneous factors and by a total unawareness of the contraindicating facts and circumstances and in disregard to material considerations of the kind, set out vide para 16, (supra), in Gurcharan Singh’s case.
18. Thus, the learned Additional Sessions Judge’s order amounted to a non-giving of the right reasons implied behind the considerations mentioned in Gurcharan Singh’s case. Thus, Prahalad Singh’s case is not of any help to N.A. 2, Ramgopal, but it goes against him.
19. In the result, I quash the impugned order by which the fourth Additional Sessions Judge had granted bail to N.A. 2, Ramgopal.