Abdul Jabbar vs State And Ors.
1992 Latest Caselaw 48 Del

JUDGMENT

V.B. Bansal, J.

(1) Abdul Jabbar has moved this application under Sec.439(2) of the Code of Criminal Procedure for cancellation of bail of Mohd. Ishaq allowed by this Court on 18th February, 1991 in Criminal Misc. (Main) No.2497 of 1990 and to Mohd.Faiyaz by Add-Sessions Judge, Delhi on 23rd February, 1991 in case Fir No.430/90 Police Station Kamla Market.

(2) Briefly stated the facts leading to the filing of this petition are as under:-

(3) Abdul Jabbar along with his sons Mirazudin, Giasudin, Riazudin and other family members was residing in House No.2644, Moh. Niharian, Delhi. In the room 266 adjacent to the aforesaid pemises of Abdul Jabbar were residing Mohd. Asvaq and his sons Mohd. Akhlaq and Mohd. Ishaq along with other family members.

(4) Riazudin was residing in the upper floor of the premises and there was no puce stairs. Temporary stairs were being used and in order to get rid of this difficulty Abdul Jabbar and other family member engaged labourers for getting puce stairs constructed at about 9.00 A.M. on 20th September, 1990. An objection was raised by Mohd. Akhlaq and Mohd. Ishaq upon which they were informed by Abdul Jabbar that they were raising stairs on their own land and that he had not raised any objection when shops were constructed by them (Mohd. Akhlaq and Mohd. Ishaq). It is also the case of the prosecution that at about 11.45 A.M. Mirasuddin also came at the house who was informed by his mother about the objections raised by Mohd. Akhlaq and Mohd. Ishaq. In the meantime, Mohd. Akhlaq and Mohd. Ishaq and also Mohd. Faiyaz who were sitting in the room of Akhlaq came out and started giving abuses of Mirazuddin. Akhlaq was having a lathi in his hand which he used for inflicting injury on the head of Abdul Jabbar. At that time Mohd. Akhlaq went inside his room and came out with an open knife while giving abuses Riazuddin was secured by Mohd. Ishaq and Mohd. Faiyaz while Mohd. Akhlaq inflicted 9/10 injuries to Raizuddin who fell down. All the three assailants ran away and Riazuddin was removed to the hospital where he was declared as brought dead. It was in these circumstances that the case was registered and the arrest was made. After post mortem examination doctor opined that injury No. 15 of Riazuddin was sufficient to cause death in the ordinary course of nature.

(5) MOHD. Ishaq moved an application being Cr.M(M) 2497 of 1990 and finally it came up for hearing on 18th February, 1991 when it was submitted by learned counsel appearing for Mohd. Ishaq that Mohd. Afaq elder brother of Mohd. Ishaq received injury in this very incident and that evidence was suppressed by the State. Learned counsel appearing for the State was not in a position to deny the existence of such evidence and it was not produced in spite of the case having been adjourned a number of times. It was also stated by Shri K.G.Sharma appearing for the State that in spite of his best efforts he was not able to get any such information. It was only in these circumstances that Mohd. Ishaq was allowed bail.

(6) MOHD. Faiyaz moved an application in the Sessions Court and he was allowed bail vide order dated 23rd February, 1991 on the plea that allegations against him were similar to the allegations against Mohd. Ishaq who-has already been allowed bail by this Court.

(7) I have heard Shri R.P.Kathuria learned counsel for the petitioner, Shri S.Aggarwal learned counsel for the State and Shri S.K.Sharma learned counsel for respondents 2 and 3.

(8) Learned counsel for the petitioner has submitted that Mohd. Ishaq did not receive injury in this very incident and that there was some separate independent incident in which he is stated to have received injuries at the hands of one Sirazuddin. He has also submitted that the Investigating Officer and police officials had not produced the relevant record before this Court at the time of considering the bail application by the Addl. Sessions Judge. He has, thus, submitted that injustice has been done to the complainant in this case on account of willful default by the Investigating Agency and bail has been allowed to both Mohd. Ishaq and Mohd. Faiyaz though they ought not to have been allowed bail. A prayer has, therefore, been made that the aforesaid bail orders may be cancelled.

(9) Learned counsel for the State has admitted that there has, in fact, been a lapse on the part of the Investigating Agency is not producing the relevant record before the Court. He has further submitted that Mohd. Afaq did not receive any injury in this incident at the hands of the complainant and thus this could not be the ground for the grant of bail to respondents 2 and 3.

(10) Learned counsel for respondents 2 and 3 has, however, submitted that it is only after the petitioner has produced the relevant copies in this Court that the prosecution has admitted about Mohd. Afaq having been got medically examined in the hospital and that he did receive injuries in this very incident. He has, thus, submitted that no case is made out for cancellation of the bail.

(11) M.L.C. has been shown to have been prepared by Dr. Rajiv Rastogi at 2.15 p.m. on 20th September, 1990. The history mentioned in the Mlc shows as injury was inflicted with stone on the head of Mohd. Afaq by one Sirazuddin on that day at about 12.30 P.M. Sirazuddin is not the complainant. A perusal of the application Cr.M.(M) 2497/90 moved by Mohd. Ishaq finds a clear mention in par 6 that the complainant had inflicted injury on the head of Mohd. Afaq brother of Mohd. Ishaq. This claim has, in fact, been found to be not correct. There is no doubt that Mohd. Afaq was sent for medical examination by Duty Officer on the basis of D.D.No.9A dated 20th September, 1990 which was about a quarrel of this incident. Merely because Mohd. Afaq was got examined by the duty officer would not necessarily mean that he received injury at the hands of the complainant especially when he has himself named Sirazuddin to be the person who had inflicted injury to his person.

(12) Considering all these facts, I am clearly of the view that Mohd. Ishaq petitioner in the said petition was allowed bail only on account of the prosecution having failed to produce the relevant material and, thus, there has been a miscarriage of justice. I am, thus, clearly of the view that on this account both Mohd. Ishaq and Mohd. Faiyaz ought not to remain on bail.

(13) As a result the application is accepted. The orders dated 18th February, 1991 in respect of Mohd. Ishaq of this Court and order dated 23rd Februry, 1991 in respect of Mohd. Faiyaz allowing them bail are cancelled. Both Mohd. Ishaq and Mohd. Faiyaz shall surrender forthwith.