Dashrath Singh vs Banti and Another

Indrani Datta, J.—Complainant / applicant has filed this application u/s 439(2) of CrPC for cancellation of bail granted to respondent No. 1 Banti alias Jitendra Gurjar in M.Cr.C. No. 4228/09 vide order dated 1.7.09.

Respondent Banti alias Jitendra Gurjar was arrested by Police Station University in connection with Crime No. 448/08 for offence punishable u/s 302, 120B, 307, 294, 147, 148, 149 IPC and Section 27 and 30 Arms Act.

As per prosecution case, respondent No. 1 Banti alias Jitendra Gurjar and co-accused caused fire arm injuries to deceased Ramkhiladi and killed him.

It is contended on behalf of the complainant / applicant that bail granted to respondent Banti is to be cancelled on the following grounds:

(1) bail was obtained by suppressing material facts;

(2) respondent Banti is threatening complainant and his family members; and

(3) application for grant of bail of co-accused Betu alias Virendra Sharma has been rejected on 21.7.09 in M.Cr.C. No. 4617/09.

Per contra, learned Counsel for respondent No. 1 while vehemently opposing the application has argued that no material fact has been suppressed and the respondent No. 1 was enlarged on bail after considering the facts and circumstances of the case. It is further submitted that there is no material to show that respondent No. 1 is threatening complainant and his family members. It is further submitted that bail of Betu was rejected considering the facts and circumstances of the case and allegation made against him. On that ground bail of present respondent cannot be cancelled.

Learned Counsel for complainant/applicant drew this Court''s attention to a citation in Deepak Singchi v. State of Rajasthan and Anr. 2007 (3) CCSC 1566 (SC) in which accused was charged of having committed serious offence and bail was granted by High Court and bail was set aside and matter was remitted to High Court for fresh consideration of bail application. The aforesaid canon in distinguishable and does not apply in the case at hand.

Furthermore, learned Counsel has relied upon a citation in Sudha Verma v. State of U.P. and Anr. 2007(3) CCSC 1604 (SC) in which Apex Court has highlighted the factors which are to be considered while granting bail, which are as follows;

(1) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

(2) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(3) Prima facie satisfaction of the Court in support of the charge.

In that case bail was granted to respondent on the ground that co-accused has already released on bail by Sessions Judge and at the most offence was one u/s 304 IPC and not u/s 302 IPC. It was held that High Court has not indicated as to what is the relevance of bail to co-accused granted to co-accused ignoring that the respondent was the alleged assailant who fired the gun and killed the deceased. Considering these grounds matter was remitted to High Court to consider the application afresh.

So far as this citation is concerned, facts of the present case are totally distinguishable. So applicant / complainant does not derive any benefit on the basis of these citations.

On the other hand, contention of learned Counsel for respondent is that material facts are not suppressed at the time of obtaining bail is concerned, as per FIR and statement of witnesses recorded u/s 161 CrPC specific allegations is made against co-accused Lakhan that he had fired on the head of deceased Ramkhiladi, who died in the incidence. There is omnibus allegation of all the witnesses that respondent and other co-accused also fired gunshots at deceased. So it cannot be said that any material fact has been suppressed while obtaining the bail. Contention of learned Counsel for respondent with this respect cannot be ignored.

Next contention raised by learned Counsel for complainant that present respondent is threatening complainant / applicant and his family members is concerned, learned Counsel for complainant drew this Courts attention to two complaints made by complainant; one to S.P. Gwalior on 5.5.09 and second complaint to President, C.J. Collector, Governor on 12.6.09 in which it is mentioned that complainant''s brother was killed at the instance of MLA Rakesh Shukla and he is eyewitness of the case and necessary police protection may be provided to him and his family members as he has been threatened by accused persons. Further, it is submitted on filing a writ petition bearing W.P. No. 2392/09 learned Writ Court directed that till further order, necessary police protection be provided to petitioner (complainant/applicant herein) and his family members as and when required, therefore this is a cogent ground for cancellation of respondent''s bail.

On the contrary, Learned Counsel for respondent No. 1 pointed out that alleged threats are not given by respondent which is evident from complaints dated 5.5.09 and 12.6.09 because at that juncture he was in jail and he was enlarged on bail only on 1.7.09. Therefore, there arises no question of threatening the complainant or his family members. It is further contended by him that bail of co-accused Betu alias Virendra Sharma has been rejected after considering the allegation that Betu alias Virendra and other co-accused who are already released on bail as well as absconding accused are threatening the complainant and his family members.

It is further submitted by counsel for respondent No. 1 that as many as 22 criminal cases are registered against the complainant. He is a proclaimed accused and reward has been levied on him. Out of the aforesaid 22 cases, two criminal cases bearing Crime No. 276/09 and 289/09 have been recently registered against complainant under Sections 307/34, 120B IPC and Section 25/27 Arms Act and Section 11/13 MPDVPK Act and Section 302, 307, 324, 147, 148, 149 IPC respectively, and therefore there is no likelihood of his appearing in court to lead evidence in present case, which will definitely prolong the proceedings and there would be no possibility of early trial. Thus, no ground for cancellation of bail is made out.

Learned Counsel for respondent placed reliance in Dolat Ram and Ors. v. State of Haryana 1995 SCC (Cri.) 237in which factors to be taken into consideration while dealing with cancellation of bail have been enshrined, which are as under;

Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. 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. However, 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.

Furthermore learned Counsel for respondent also drew this Court''s attention to a Full Bench decision in Aslam Babalal Desai Vs. State of Maharashtra, wherein the Apex Court has held as follows;

Bail granted u/s 437(1) or (2) or Section 439(1) can be cancelled u/s 437(5) and 439(2) 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. These grounds are illustrative and not exhaustive. Rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.

Relying on the above citations, it is submitted that none of the above grounds specified are available for cancellation of bail granted to respondent.

Considering the above legal position and totality of the facts and circumstances of the case, I find no ground for cancellation of bail. Accordingly, application is dismissed.