Pre-arrest bail is denied to the accused ,even if there is FIR of the same incident as a defence : Patna High court

The pre-arrest bail granted in anticipation of arrest has to function like any other order granting bail till an order of conviction or till an assenting direction is passed. A single bench comprising of Justice Ahsanuddin Amanullah adjudicating the matter of Lalan Yadav v. The State of Bihar (CRIMINAL MISCELLANEOUS No. 35568 of 2020 ) dealt with an issue of whether to grant bail to the Petitioner or not.

In the present case, the Petitioner is apprehending arrest u/s 302/34 of the Indian Penal Code and u/s 27 Arms Act, 1959. The Petitioner is alleged that they had come to the marketplace and had started firing in the air and threatening that they will do whatever they want and thereafter they had called other co-accused and in the indiscriminate firing the informant’s son was injured and died on way to the hospital. It was submitted by the Petitioner that there is no specific allegation as to whose firing hit the deceased and the allegation is only general and omnibus of firing.  It was also submitted that the petitioners are brothers and because there was a conflict between two castes, they have been falsely implicated and they had no role in the incident. It was further submitted that because of previous enmity they have been implicated. The Petitioners submitted that the mother of the Petitioners has also filed a case for the same incident.

The Opposite party contended that there is no occasion for the informant to specifically name the petitioners as no father would save the murderer of his son by implicating persons who are innocent. Also, it was submitted that the false implication could have been there only when the real culprit was also made accused even though they may have been unknown, but in the present case-specific allegation is against the present two petitioners with regard to their role in starting the whole episode and also making indiscriminate firing and even if it is assumed that the firing made by the petitioners may not have hit the deceased, the same is irrelevant as they were very much party to the firing and thus, the responsibility for the death has to be equally taken by all the accused, including the petitioners.

It was also submitted that “even the FIR lodged by the mother of the petitioners is clearly an afterthought, to create a defence, as the same has been lodged on 16.03.2020, though the incident is said to have taken place on 10.03.2020 and the present case, as well as the police case, have been lodged on the same day of the incident, i.e., 10.03.2020.”

After looking into the contentions of both the parties and minute examination the court held that the Petitioners should not be granted pre-arrest bail and hence dismissed the application.

Click here for the Judgement

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