Anil Kumar vs Kamlesh

Sat Pal, J.

This petition has been filed by the petitionercomplainant under Section 439(2) of Code of Criminal Procedure (in short, the Code) for cancellation of bail of respondent Nos. 1 and 2.

Briefly stated, the facts of the case are that respondent Nos. 1 and 2 were arrested in the case FIR No. 135, dated 4th July, 1994, registered under Sections 323/324/325/326/506/34, Indian Penal Code, at Police Station Khol, Tehsil and District Rewari. The respondents filed an application for grant of bail in the Sessions Court which was rejected by the learned Additional Sessions Judge, Rewari on 18th August, 1994. Thereafter, the respondent No. 1 (Kamlesh) filed a bail application bearing Criminal Misc. No. 14594M of 1994 under section 439 of the Code in this Court which was dismissed by a learned Single Judge of this Court on 6th October, 1994. While dismissing the said bail application, the following orders were passed :

"No ground to grant bail.

Dismissed."

On 13th December, 1994, both the respondent Nos. 1 and 2 filed another application of grant for bail in the Court of Shri Virender Singh, Additional Sessions Judge, Rewari. In this a application, inter alia it was stated that the applicants had been in custody since 16th July, 1994 and the earlier application filed on behalf of the applicants was declined at that stage vide order, dated 18th August, 1994, passed by the learned ASJ (1) Rewari. The material fact regarding the rejection of bail petition filed by respondent, Kamlesh was, however, not stated in this application. In Para 8 of the application, it was stated that coaccused Ramesh Punam had already been enlarged on bail by the High Court vide order, dated 13th September, 1994. In Para 9 it was stated that despite several opportunities the prosecution had not examined its witnesses and the trial of the case would take sufficiently long time. The learned Additional Sessions Judge, Rewari vide his orders, dated 14th December, 1994, allowed the said application for bail. In his order, the learned Additional Sessions Judge, stated that "it is conceded that the trial shall take a long time to conclude. No PW has been recorded as yet. There is no likelihood of the accused misusing the concession of bail by tampering with evidence etc."

Thereafter, the complainant (the petitioner herein) filed an application (copy of which is Annexure P5) in the court of Additional Sessions Judge, Rewari for cancellation of the bail of respondent No. 1 (Kamlesh). It was stated in this application that the accused had got bail by false representation and concealed the material fact from the Court, regarding the rejection of the bail by the High Court, in the Court of Additional Sessions Judge. The said application was, however, rejected by the learned Additional Sessions Judge, vide his order, dated 13th January, 1995. In this order, it was stated that "It goes without saying that the accused had committed grave impropriety by not mentioning in the bail application about the rejection of his bail plea by the Hon''ble High Court on 6.10.94. However, it was mentioned in the application that application for bail filed before the court of Shri V.P. Agarwal, Addl. Sessions JudgeI, Rewari had been already dismissed in the month of August, 1994." It was also stated in this order that between October 6, 1994 and December 14, 1994 the case had come up for recording evidence on two occasions but no witness was examined by the prosecution and in these circumstances, it would not be advisable to withdraw the concession and cancel the bail of the accused Kamlesh. Aggrieved by this order, the present petition has been filed by the complainant under section 439 of the Code for cancellation of the bail of both the respondents, namely Kamlesh and Babu Lal.

Mr. Panwar, learned counsel appearing on behalf of the petitioner submitted that respondent No. 1 had concealed the material fact regarding rejection of his bail application by the High Court when he filed an application before the Sessions Court for bail on 13th December, 1994, and as such, the bail granted to the said respondent should be cancelled. He further submitted that in case the fact regarding cancellation of bail by the High Court had been brought to the notice of the learned Additional Sessions Judge, he would not have granted the bail to both the respondent Nos. 1 and 2. In support of his submissions, the learned counsel placed reliance on the following judgments :

(1) Smt. Bimla Devi v. State of Bihar, 1994(1) RecentCR 509 .

(2) Dharam Vir Khosla v. SSP. Hoshiarpur, 1994(1) RecentCR 120 .

(3) Shahzad Hasan Khan v. Ishtiaq Hasan Khan, AIR 1987 SC 1613.

Learned counsel further submitted that after their release on bail, vide order dated 14th December, 1994, the respondent Nos. 1 and 2 threatened the petitioner, his brother and father on 13th January, 1995 and told them that in the event of the petitioner appearing and giving evidence against them, they would be killed and this threat was given in the presence of ExSarpanch Shimbhu Dayal, present Sarpanch Purshotam and Panch Shri Ram. In support of this submission, he drew my attention to para 8 of the petition and submitted that in view of the said threat the concession of bail granted to the respondent should be cancelled. In support of this submission, he placed reliance on the following judgments :

(1) State through Delhi Admn. v. Sanjay Gandhi, AIR 1978 SC 961.

(2) Sate of Maharashtra v. Capt. Buddhikota Subu Rao, 1989(2) All India Cr. LR 556.

(3) Aslam Babalal Desai v. Sate of Maharashtra, AIR 1993 SC 1 : 1993(1) Recent Criminal Reports 600.

Mr. Yadav, learned counsel appearing on behalf of respondents Nos. 1 and 2 submitted that the allegation regarding concealment of fact of rejection of bail by the High Court is only against respondent No. 1 Kamlesh and not against respondent No. 2. He further submitted that respondent Kamlesh who was in custody had given the power of attorney in favour of the counsel through his father and the fact of rejection of bail by the High Court was not communicated either to the petitioner or his father or brother, and it was a bona fide mistake that this fact was not mentioned in the application filed before the Sessions Court on 13th December, 1994. Learned counsel further submitted that the allegations regarding threat made in Para 8 of the petition were totally false and no FIR was lodged by the petitioner in respect of the alleged threat. He further submitted that once bail has been granted to respondent Nos. 1 and 2, it should not be cancelled unless some exceptional circumstances exist to the effect that the said respondents would intimidate the evidence or their presence cannot be obtained in the Court. In support of his submission, he placed reliance on the following judgments :

(1) Bhagirathsinh Judeja v. State of Gujarat, AIR 1998(4) SC 372 ;

(2) Sanjay Gandhi''s case (supra)

(3) Aslam Babalal Desai''s case (supra)

(4) Mrs. Lily Gupta v. State and another, 1984(2) RecentCR 543 .

(5) Harjit Singh v. Jagdish Singh, 1992(2) RecentCR 396 .

(6) Ashok Kumar v. State and another, 1992(2) RecentCR 563 .

The learned counsel, therefore, contended that since the factors regarding cancellation of bail did not exist in the present case, the petition filed by the complainant should be dismissed.

I have given my anxious consideration to the submissions made by the learned counsel for the parties and have perused the records. This is an admitted fact that the application, bearing Cr. Misc. No. 14594M of 1994, for grant of bail filed by accused Kamlesh (respondent No. 1) in this Court was rejected by this Court on 6th October, 1994. This is also an admitted fact that the said accused has not mentioned this fact in the subsequent application for bail filed jointly by him as well as other accused, namely Babu Lal, on 13th December, 1994, in the court of Additional Sessions Judge, Rewari. It is also true that the fact regarding the rejection of the earlier application for bail by the High Court was a material fact which ought to have been disclosed by the said accused in his subsequent application filed before the Sessions Court. The explanation given by the learned counsel for the said accused that the fact regarding the rejection of the application for bail filed by accused Kamlesh in this Court was not communicated to him or to his father by the learned counsel, who argued the case in the High Court, is not satisfactory at all. It appears that this fact was deliberately concealed by accused Kamlesh when he along with accused Babu Lal filed subsequent application before the Sessions Court on 13th December, 1994. In this connection, it will be relevant to refer to the following observations of the Supreme Court in S.F. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. & ors. JT 1993(6) SC 331 :

"Nonproduction and even nonmentioning of the release deed at the trial tantamounts to playing fraud on the court. We do not agree with the observation of the High Court that the appellantsdefendants could have easily produced the certified registered copy of Exhibit B16 and nonsuited the plaintiff. A litigant, who approaches the court, is bound to produce all documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."

Keeping in view the aforesaid facts and the law laid down by the Hon''ble Supreme Court, the petition qua respondent No. 1 has to be allowed. Since respondent No. 2 had not approached this Court before filing the application for bail before the Sessions Court, the bail granted to him cannot be cancelled on this ground.

In the case of Aslam Babalal Desai''s case (supra) relying on earlier judgments, it was held by the Supreme Court that bail granted under Section 437(1) or (2) or 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or 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 etc. but as held by the Supreme Court in the case of Sanjay Gandhi (supra) that though the power to take back in custody the accused who has been enlarged on bail is to be exercised with care and circumspection, but that does not mean that the power though extraordinary in character, must not be exercised even if the ends of justice so demanded. Since respondent No. 1 had concealed the material fact regarding the rejection of his application for bail by the High Court in his subsequent application filed before the Sessions Court, I am of the view that ends of justice demand that the concession of bail granted to him should be withdrawn. Here reference may also be made to the following observations of the Supreme Court, in a recent judgment in Bimla Devi''s case (supra) :

"The disturbing feature of the case is that though two successive applications of the accused for grant of bail were rejected by the High Court yet the learned Magistrate granted provisional bail. The course adopted by the learned Magistrate is not only contrary to settled principles of judicial discipline and propriety but also contrary to the statutory provisions."

I, however, do not find any substance in the contention urged by the learned counsel for the petitioner that the bail granted to both the respondent Nos. 1 and 2 should be cancelled as the respondents had threatened the petitioner and his brother and father on 13th January, 1995. The learned counsel for the petitioner during the course of his arguments admitted that no FIR was lodged by the petitioner or his brother or his father after the alleged threat of killing them was given by respondent Nos. 1 and 2 on 13th January, 1995, nor any letter was addressed to any Police authority.

For the reasons recorded hereinabove, the petition qua respondent No. 1 is allowed and the bail granted to respondent No. 1 is cancelled. It is further directed that respondent No. 1 be taken into custody. The petition qua respondent No. 2 is, however, rejected. It is also made clear that respondent No. 1 shall be at liberty, after he is taken into custody, to file fresh application for bail in case any new facts have come into existence after his earlier application for bail was dismissed by this Court on 6th October, 1994.

JUDGMENT accordingly.