G.M. Lodha, J.
1. Second innings of 'bail without jail', after avoiding arrest for one and a half years.
2. Heard learned Counsel for the petitioners and Mr. Khan P.P.
3. Chhanga and Pema have filed this second Bail application under Section 438, Cr.P.C. after the first was rejected by this Court on 4.9.81, In the order dated 1.9.81, detailed facts have been given as to how two cross cases were filed by the rival parties and in one of them Chhanga Ram and Pema are facing investigation. The co-accused of Chhange ram and Pema were granted anticipatory bail by order dated 4.9.81, and they are Sarvjeet, Raghubeer, Ramsingb, Murli and Raghunath required in F.I.R. No. 57/81 of P.S. Goda Bhim dated 29.7.81. In the cross case of FIR No. 56/81 of the same Police station, Jainarain and Cbiman were admitted to bail under Section 438, Cr.P.C. by the same order.
4. Earlier also, a submission was made by Mr. Rastogi, who represented Chhanga ram and Pema that it was established on record that the opposite party was the aggressor.
5. Now, Mr. Gupta appearing for these two accused has submitted that by the investigation this fact has been proved and a challan is going to be filed against the opposite party under Section 307, I.P.C. Mr. Gupta relied upon the decision of the apex court Gurbaksh Singh Sibhia v. Harhajit Singh and Anr. & read out the important observations made in para 31 in support of the contention that bail should he granted to the present accused also under Section 438, Cr.P.C. Mr. Gupte's contention is that on the record it is established that these two accused have been involved on account of political rivalry and criticism, and an effort is being made to humiliate them by arrest and detention in jail. Mr. Gupta submitted that there was no chance of these accused absconding, as one of them has remained a member of the Legislative Assembly earlier and now Chief of Bhartiya Janta Party, a political, party in the district Mr. Gupta also submitted that on the record it is established that these persons never absconded during all this time interval between the rejection of the first application and the moving of the second bail application.
6. Mr. Khan learned P.P. who has obtained the record of investigation has pointed out that these two accused are going to be challenged under Section. 307 I.P.C. It was pointed out that specific evidence has come on account of which it is established by the investigation that these two accused used sharp edged weapons, such as Kulhari & pharsi, & caused serious injuries to the persons belonging to the complainant party. Mr. Khan pointed out that the medical evidence supports it, and it was further pointed out that on 21st, 22nd and 23rd of December, 1982, efforts were made to arrest them, but these two accused were absconding according to the police record and could not be arrested. Mr. Khan pointed out after rejection of the first bail application on 4.9.81, these two accused have not surrendered and even when effort was made to arrest them they were not available to the police, and, therefore, there is no exceptional reason to grant them bail now when the case has been proved by investigation against the on under Section 307, I.P.C.
7. Mr. Khan further pointed out that the allegations of political vendata are not correct and it is a case of attack by these persons on the complainant party causing serious injuries. Mr. Khan also submitted that merely because a person happens to be a member of the political party or chief of the political parties in area, it provides no immunity for arrest, if he is involved in a criminal case, as the Jaw should be allowed to take its own course irrespective of the political affiliations of the accused.
8. I have carefully considered the submission of the learned Counsel for the parties after hearing there it length. This is second time the lam considering this bail application, because earlier order dated 4.9.81 was also passed by me.
9. It is not in dispute that the prosecution after investigation his decided to file a challan under Section 307, I.P.C. against these two accused and originally, right from the stage of felting o the F.I.R. these two persons were accused of using deadly sharp edged weapons such as axe and Pharsi causing grievous injuries.
10. I would not permit myself to enter into the controversy about the political affiliations of the parties concerned, because in my considered opinion, an alleged criminal is a criminal, whether be belongs to one party or the other, and merely because a person claims to be political leader, he cannot claim any immunity from arrest, trial or punishment according to law of the land In my considered opinion this consideration is irrelevant and extraneous and should not be alleged to prevail either way so far as the court is considered.
11. The political flags of the parties to a litigation have got no relevance in this Court and therefore. I am immuring the allegations of the accused in the affidavits earlier in this case. In Sum rsingh v. State (2) serous political feud was brought in the case, out ignoring the same, I have observed as under:
In the dying declaration the deceased says, that he belongs to the Janata Party and the accused belong to the Congress party whose Sarpauch has been elected and whose procession was being taken out and it was on account of this election fued that the deceased was murdered, as he did not support the Sarpanch. I shall not allow myself to be in any way affected or swayed by political controversy, as it has got no relevance for this Court except to show the motive of the murder
The Court is bound to take a detatched view and objective legal view by rising over and above political history, the original background or the communal complexion of a particular case and the persons involved in it. I would leave the election dispute there and I would not refer to it anywhere in this case.
13. An effort of any party to exhibit his political affiliations directly or indirectly in a pending case should be quriously deprecated aid cannot be allowed to get any relevancy. Vague and bald allegations of rousing in a person to an accused in a criminal case on account of political motivation is not worth consideration and need not be mentioned even for rejection of the theory. It is neither the political history of a person, either complainant or the accused, nor his nationality or religion, which can cloud the vision of the court. It is the law and lay alone, and sometimes justice and equity, which assume equal importance, but nothing else which results in an objective adjudication of each case. Therefore, I am inclined to reject the allegations of the accused of political vendeta in this case for the purpose of this bail application. Even the investigation is expected not to be swayed away by these considerations.
14. In the instant case, the dispute is regarding preparation of a Bal in an agricultural land, and use of Pharsas, lathis and axe and guns by one party or the other is nowhere connected with any political dispute. At this stage, it is premature to give a finding that any particular person has been involved falsely on account of his political affiliations inspite of being innocent.
15. Seemingly, the names of these two accused persons were mentioned in the FIR and at the time of initial rejection of the bail application on 4-9-81, I have distinguished their case, because their case was com paratively serious & different from the case of other accused.
16. The principles which have been enunciated by the Hon'ble Supreme Court undoubtedly govern the decision of the bail application under Section 438, Cr.P.C. in each case. However, the application of these principles depends upon the peculiar features of this case, and there cannot be any generalization either by way of rejection or acceptance of the bail application.
17. An important feature of this case is that from 4-9-81 till now, though the investigation has remained pending and as per the police diary read over by Mr. Khan, atleast in December, 82 these two persons were required to be arrested and an effort was made, but they have not surrendered so far. In such circumstances, it would be improper for this Court to entertain second bail application even on the assumption that a challan is going to be filed in both the cross cases under Section 307, IPC. Obviously, an important question as to who was the aggressor will have to be adjudicated by the court at the proper stage and it would be premature to jump to a conclusion in favour at the accused of this stage.
18. I am of the firm opinion that it would not be popper to express any opinion about the merits of the case, because in all fairness, that should not be pre judged at this stage. All that can be said is that the present one is a case where the two accused having lost first innings on 4.9.81 have not improved their position at all, and, therefore, they must not claim any benefit of bail without jail', more so because they did not surrender after 4.9.81 till now.
19. Of course, as soon as they either surrender or are arrested, it would be for the Court concerned to apply its mind and consider whether bail can be granted under Section 437 or 439, Cr.P.C. or not. At that stage, the fact that two cross cases are filed under Section 307, IPC can also be considered.
20. Mr. Gupta prayed that a specific order should be passed that if the accused surrender, the bail application should be considered on the same day. It is difficult for this Court to pass any specific order in this respect, because it all depends upon the work of the court, but undoubtedly it is expected that the criminal courts in the matter of bail application should act expeditiously and unless on account of any extra ordinary reason they are required to postpone the hearing for the next day, the bail application should be decided immediately.
21. Mr. Gupta further submitted that this Court should clarify that the observations of this Court would not come in the way of bail under Section 437, Cr.P.C. This is implied and implicit and needs no order.
22. With these observations, the bail application is rejected.