Alam Deep Thakur vs State of Haryana

S.S. Sudhalkar, J.

This is an application for cancellation of bail filed by a private party. Respondent No. 2 was arrested in connection with F.I.R. No. 173 dated 21.12.1995, registered at Police Station Chapper, District Yamuna Nagar for the offences under Sections 302/452/201/148 and 149 of the Indian Penal Code. After his arrest, he was granted bail by the Additional Sessions Judge, Jagadhri. Hence this application is filed for cancellation of bail.

The complaint in this case is given by Phool Chand, Chowkidar of village Mustafabad. It is stated in the complaint that Mandeep alias Prince son of Usha Thakur who was living in Mustafabad eloped with Sapna daughter of Girdhari Lal in the month of April, 1995. Sapna was living in the neighbourhood of Mandeep. Police action was also taken. It is also stated that later Sapna, against the wishes of her elders gave a statement in favour of Mandeep alias Prince in the High Court and the two had started living as husband and wife. It is also mentioned in the complaint that earlier both of them were living somewhere else and sometime Mandeep used to bring his wife Sapna to Mustafabad to his mother Usha Thakur. The elders of the girl used to exchange hot words about their living in the village. It is also stated by the complainant that on the date of incident, in the morning, he came to know that Usha Thakur, her son Mandeep alias Prince, has wife Sapna were killed at night in the house. It is further mentioned that after killing them, in order to destroy the dead bodies, they put the same on fire. When the complainant went there, he saw that door opening towards the house of Girdhari Lal was broken and in the courtyard, the dead bodies of Usha Thakur, Mandeep and Sapna were lying.

The complainant is not an eyewitness. However, the prosecution has relied on the statement of witness Parveen Kumar whose statement was recorded on 21.12.1995 itself. According to the version of Parveen Kumar, on 20.12.95 at about 9.00 p.m. he had gone to the house of Smt. Usha Thakur for some work with Mandeep alias Prince. He has further stated that after a short while sound of falling of door was heard and that he and Mandeep alias Prince went to the courtyard and saw a number of persons gathered there including Girdhari Lal armed with a gandasi Happy, armed with a pipe, Mangat Ram armed with a lathi, Jai Bhagwan armed with a danda, Naresh armed with a lathi and respondent No. 2 armed with a lathi. He has further stated that Girdhari Lal gave a gandasi blow hitting Mandeep on the head and gave another blow on his face as a result of which he fell down on the ground and after he had fallen, Happy, Jai Bhagwan, Mangat Ram, Naresh Kumar and respondent No. 2 gave blows with lathies and danda. He has further stated that out of fear, he ran outside. He has further stated that when Usha Thakur came to rescue Mandeep, Girdhari Lal gave a number of Gandasi blows on the head of Usha Thakur and others accused also gave blows hitting her with lathies and danda. He has further stated that as a result of Gandasi and lathi blows, Usha Thakur, Happy and Sapna succumbed to the injuries. He has also stated that Girdhari Lal lifted a can and poured kerosene oil setting the dead bodies of all the three persons on fire. He has further stated that out of fear, he could not go to report the matter, and on knowing that the police had arrived at the scene of occurrence, he made his statement to the police.

Respondent No. 2 was not challaned by the police. However, he was summoned under section 319 Cr.P.C. by the learned Additional Sessions Judge, Jagadhri. However, when respondent No. 2 applied for bail, he was granted bail by the learned Additional Sessions Judge, Jagadhri.

The reasons for releasing respondent No. 2 on bail are mentioned in para 4 of the judgment which are reproduced as under:

" The applicant is a regular employee of the HSEB and is living in HSEB Colony. He being the only earning member of his family, there are little chances of his absconding during the trial. Though the part attributed to him in the commission of the offence is the same as attributed to Girdhari Lal, but he was found to be innocent during the investigation by the police. He has been summoned under section 193 Cr.P.C. after recording the statement of the complainant."

Therefore, though the part attributed to respondent No. 2 is the same as attributed to Girdhari Lal, he was released on bail because (i) he was found innocent during investigation by the police; (ii) he is a regular employee of the H.S.E.B. and is living in H.S.E.B. Colony (iii) he is the only earning member of his family and (iv) that there are little chances of his absconding during the trial.

Learned counsel for the petitioner has argued that the grounds on which the bail is granted are not valid grounds and, therefore, the bail should be cancelled.

Learned counsel for the private respondent relied on the case of Dolat Ram and others v. State of Haryana, 1995 Supreme Court Cases (Crl.) 237. It was a case of dowry death in which learned Additional Sessions Judge had granted anticipatory bail to the parents and brother of the husband of the deceased. When the matter was taken up before the High Court, it observed as under :

" Dowry death is a serious matter and cannot be taken so lightly. No positive finding has been recorded by the Additional Sessions Judge in his order to the effect that the respondents and the deceased were living separately. No prima facie case is made out which could justify the grant of anticipatory bail. To my view of thinking, concession of anticipatory bail granted by the Additional Sessions Judge, was totally uncalled for. The order dated 12.11.1993 is, therefore, set aside and the respondents are directed be taken into custody."

The Supreme Court in the appeal over the said order held that the learned Additional Sessions Judge was not justified in observing: "it appears that possibly these accusedappellants have been roped in falsely, at that initial stage, when possibly the investigation was not even completed and no evidence was led at the trial", but at the same time it also held that the High Court also fell in error in cancelling the anticipatory bail granted to the appellants for the reasons, which have been extracted by us above. It is observed by the Supreme Court in that judgment that rejection of bail in non bailable offence and cancellation of bail already granted must be considered and dealt with on different basis and that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. The Supreme Court has enumerated the grounds for cancellation of bail. There are as under :

(i) interference or attempt to interfere with the due course of administration of justice; and

(ii) evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner.

It is also observed by the Supreme Court in that judgment that the satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. It is further observed by the Supreme Court that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. It is also observed in the above said judgment that the "High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a nonbailable case in the first instance and the cancellation of bail already granted."

In the case of Aslam Babalal Desai v. State of Maharashtra. 1993(1) R.C.R. 600, the Supreme Court has again enumerated the ground on which the bail can be cancelled. They are as under:

"(i) Where the accused misuses his liberty by indulging in similar criminal activity;

(ii) interferes with the course of investigation;

(iii) attempts to tamper with evidence of witnesses;

(iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation;

(v) there is likelihood of his fleeing to another country;

(vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency;

(vii) attempts to place himself beyond the reach of his surety."

In both the above stated judgments, the Supreme Court has held that these grounds are illustrative and not exhaustive. It is, therefore, clear that these are not the only grounds on which the bail can be cancelled. However, the principle laid down by the Supreme Court in Dolat Ram''s case (supra) that the bail once grand should not be cancelled in a mechanical manner, has to be applied.

Coming to the order of bail granted by the learned Additional Sessions Judge, it is clear that the learned Additional Sessions Judge has considered amongst other grounds the fact that the private respondent was not challaned by the police. However, the other grounds on which the learned Additional Sessions Judge has based his judgment viz. (i) that the private respondent is the only earning member of his family; (ii) that he is a regular employee of the H.S.E.B. and living in H.S.E.B. Colony; and (iii) that there are little chances of his absconding during the trial, cannot be said to be in any way the valid grounds which should lead to release him on bail. The learned Additional Sessions Judge has fallen in error in considering the frivolous grounds in releasing the private respondent on bail.

However, there is another (above mentioned) ground on which Additional Sessions Judge has considered the release of private respondent on bail i.e. that the private respondent was not challaned by the police and found him innocent. This ground may not be a weighty one while considering the grant of bail, however, when question of cancelling the bail already granted is concerned, it cannot be brushed aside as a flimsy one. Learned counsel for the petitioner hence argued that witness Parveen Kumar is facing threat to his life and, therefore, in Crl. Misc. No. 17957M of 1996 titled Alam Deep Thakur v. State of Haryana, this Court vide order dated 3.10.1996 was pleased to allow security to Praveen Kumar resident of Mustafabad who is under constant and grave threat of the accused on account of influential status of the accused party and particularly in view of the fact that it is a case of triple murder and single eyewitness. No affidavit of Parveen Kumar witness is shown to have been filed in this case and nothing has shown to me what has happened thereafter (after granting security to Praveen Kumar). One more thing which has also to be taken into consideration is that the trial is already started. Learned counsel for the petitioner argued that the trial has still not completed because of threats to the witnesses. However, no such evidence is shown to me.

Learned counsel for the petitioner has cited before me that case of State v. Jaspal Singh Gill, 1984(2) R.C.R. (Crl.) 388: A.I.R. 1984 S.C. 1503. In that case the accused was charged of offence under section 3 of Official Secrets Act, 1923 relating to military affairs and it was alleged that he had obtained classified information on defence matters and had passed on the information to the U.S. Intelligence Operators. The High court had enlarged the accused on bail on the ground that the material collected by the prosecution was insufficient to sustain conviction. The Supreme Court in that case held that the decision of the High Court that the material collected by the prosecution and the evidence to be adduced at the trial would not be sufficient to sustain a conviction was a premature one, and also held that the accused should not have been enlarged on bail in the larger interest of the State. The Supreme Court considered the gravity of the offence which related to the security of the State. The other persons tried with the accused were exmilitary men well versed in military affairs who were capable of establishing bridges with the sensitive sections of the defence services, and that the accused was also alleged to be having some dealings with the defence department. In that case the Supreme Court cancelled the bail granted to the accused by the High Court and directed that accused should remain in judicial custody till further order.

It has to be seen that each case has got its own facts which may not be identical. The gravity in the case of State v. Jaspal Singh Gill (supra) is much more than the offence in the case in hand. The facts also differ because in the present case the private respondent was not found guilty by the police. The finding of the police may or may not be correct but because of the principles laid down by the Supreme Court regarding the cancellation of bail mentioned above, I find that the petitioner has not been able to make out a case for cancellation of bail.

In view of the above reasons, this petition is dismissed.