Davender Saroha vs State of Haryana

A.P. Chaudhri, J.

This is a petition under Section 439(2) of the Code of Criminal Procedure, 1973, for cancellation of bail granted to respondent No. 2 by order of the Additional Sessions Judge, Sonepat, dated August 14, 1992.

According to the FIR, which was lodged by Davender Saroha, petitioner, his father Om Parkash was owner in possession of a plot of land at village Kalupur. That plot had been demarcated by Local Commissioner a week earlier and Om Parkash had constructed a 3/4 feet high boundary wall a day before the occurrence. On April 20, 1993, the complainant side learnt that Dharambir along with his companions, accused in this case, had collected there in order to forcibly take possession and demolish the wall. The complainant, his father Om Parkash deceased, his uncle Jai Kanwar and one Ram Kumar reached the plot at 11 A.M. Except Pawan Kumar, the remaining accused were variously armed. Dharambir, principal accused, was carrying a countrymade pistol. On seeing the complainant party the accused persons attacked them. Jai Kanwar, who was carrying his licensed DBBL gun was injured by Pharsa by Kishan accused. Dharambir then fired a shot from the pistol on the chest of Om Parkash. Jai Kanwar fired two shots in the air. The accused, however, broke his gun. On complainant side, besides Om Parkash, who was fatally injured, the other injured were Davender Saroha, Jai Kanwar and Ram Kumar. Two/three accused were also injured when the complainant party picked up Safeda Lathis lying there and used them to repel the attach. Om Parkash succumbed on way to hospital.

After investigation, the police filed a challan. The case was committed and was under trial. By order dated August 14, 1993, Mr. V.P. Chaudhary, Addl. Sessions Judge, Sonepat, directed release of Dharambir, the principal accused, on bail. It was observed that the applicant was entitled to the discretionary relief of bail, for the reasons that (a) no useful purpose would be served by keeping the accused in custody, (b) because Forensic Science Laboratory report had not yet been received, (c) trial of the case will take sufficiently long time; and (d) the other accused persons had already been bailed out by order of Mr. V.M. Jain, Sessions Judge, Sonepat.

Hence this petition.

I have heard Mr. A.S. Chaudhary, Advocate for the petitioner, Mr. S.K. Kapoor, Asstt. AdvocateGeneral for respondent No. 1 and Mr. H.S. Gill, Senior Advocate for respondent No. 2.

The contention of Mr. A.S. Chaudhary is that here was a case where the occurrence took place in broad day light, first information report was lodged without any delay, and the accused were not only named but definite role was attributed to them. The prosecution case was supported by an eyewitness account of stamped witnesses. He further contended that for purposes of bail, the allegations made in the FIR were required to be assumed to be true. That being so, the complainant was in possession of the land in question, having obtained the possession after demarcation by a Local Commissioner. Further, Om Parkash had got constructed the boundary wall a day prior to the occurrence. He also highlighted that even though Jai Kanwar was carrying his licensed gun, he only fired in the air twice in order to prevent escalation of the occurrence. Dharambir, who had been granted bail, on the other hand, shot the deceased in the chest with his countrymade pistol. The offence was punishable with death or life imprisonment and there were numerous cases pending in the same Court where the accused had been in custody for more than two years in connection with murder cases. Lastly, he submitted that non receipt of the report from the Forensic Science Laboratory was no ground to admit the respondent to bail and the grant of bail in case of such a serious offence had resulted in total denial of justice to the other side and that it was a fit case for this Court to cancel the bail.

The stand of Mr. S.K. Kapoor, Assistant AdvocateGeneral, Haryana, is that even though the State had not filed any application for cancellation of bail, the State would gladly accept any order which is passed in the facts and circumstances of the case by this Court.

The main contention of Mr. H.S. Gill is that once in exercise of its discretion bail had been granted by the trial Court, this Court can interfere under section 439(2) only if the case can be brought in one or more of the recognised categories of cases in which bail once granted can be cancelled. Mr. Gill cited Gurcharan Singh and others v. State (Delhi Admn.) AIR 1978 SC 179. and submitted that ordinarily, the High Court would not exercise its discretion to interfere with an order of bail granted by the Sessions Judge in favour of an accused (vide paragraph 27). There can be no dispute with the broad principle. It cannot, however, be taken to mean that in no case can the High Court interfere where bail has been granted by an inferior court in exercise of its supposed discretion. Incidentally, Gurcharan Singh''s case was a case in which the trial Court had granted bail to the accused which was cancelled by the High Court and the accused had approached the Supreme Court against the order of cancellation. It was held that the High Court had correctly appreciated the entire position and, therefore, there was no case for interference. It was also observed by their Lordships on paragraph 25 of the report that in considering the question of bail, justice to both sides governs the judicious exercise of the Courts'' judicial discretion.

The next case relied on by Mr. Gill is The State v. Sanjay Gandhi, AIR 1978 SC 961. Mr. Gill invited my attention to the following portion occurring in paragraph 24 :

"The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the Courts to be silent spectators to be subversion of the judicial process."

The argument of Mr. Gill is that the power of the High Court under section 439(2) of the Code of Criminal Procedure is restricted only to cases where it is shown that the accused was interfering with the course of justice by tampering with witnesses or was likely to make himself scarce to defeat the ends of justice. He, therefore, contends that no such case having been pleaded or made out there was no question of cancellation of bail. Mr. Gill next relied on observations in paragraph 6 of the case Bhagirathsing Judeja v. State of Gujarat, 1984 Crl. LJ 160

"The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail."

Lastly, Mr. Gill relied on the following observations in Aslam Babalal Desai v. State of Maharashtra, 1993(1) RCR 600 (SC) for the proposition that the bail once granted can be cancelled only 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 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, and (vii) attempts to place himself beyond the reach of the surety, etc.

On merits of the case, Mr. Gill submitted that there was a dispute existing as to which party was in possession of the plot. Admittedly, the complainant side came armed with a loaded gun. No pistol was recovered from Dharambir accused during investigation of the case. Two or three persons on the side of the accused were injured. It was quite possible that Om Parkash was hit by the gunshot in the scuffle which led to breaking off the gun of Jai Kanwar and, lastly, that the prosecution itself was taking time to produce the report of the Forensic Science Laboratory and the case was being adjourned at the asking of the prosecution from time to time and in such a situation, the accused could not be kept in custody for indefinitely long. Mr. Gill also contended that the complainant as distinguished from the State has no locus standi to move an application for cancellation of bail. He placed reliance on Deep Singh v. Kaka Singh and others, 197377 Chandigarh Law Reporter 32. and Sarwan Kumar and others v. The State of Haryana, 1989 Crl. L.T. 336.

I have carefully considered these contentions.

At the outset, it is necessary to notice Legislative changes brought about in the new Code :

Subsection (2) corresponds to subsection (2) of old Section 498. Subsection (2) of old Section 498 empowered the High Court or the Court of Session to cancel bail granted by itself. The new subsection (2) empowers the High Court and Court of Session to cancel bail even where the bail has been granted by the lower court.

In the absence of an express provision, it was held that if at a later stage of the proceedings it was found that the accused was intimidating, bribing or tampering with the prosecution evidence or was attempting to abscond, the High Court could cause him to be arrested and to commit him to custody for such period as it thought fit in the exercise of its inherent jurisdiction. In the nature of things, it was further held that the aforesaid inherent jurisdiction could be invoked in exceptional cases only when the High Court was satisfied that the ends of justice will be defeated unless the accused was committed to custody (See Ratilal Bhanji Mithan v. Assistant Collector Custom, Bombay, AIR 1967 SC 1639). In the present Code of 1973, the Parliament has made an express provision in section 439(2), in which a High Court or Court of Session is empowered to direct any person who has been released on bail under the Chapter relating to bail to be arrested and to commit him to custody. It is significant that the exercise of this power is not hedged in by preconditions or qualifications. Discretion is required to be exercised (a) according to well known principles, and (b) in the facts and circumstances of each case. There cannot be an inexorable formula in the matter of grant or cancellation of bail See (Gurcharan Singh and another v. State, AIR 1978 SC 179). It may be made clear that the power of cancellation of bail, though of an extraordinary nature, is meant to be exercised in appropriate cases (vide State v. Sanjay Gandhi) (supra). One thing more : The principle enshrined in Section 437, namely, that a person accused of a nonbailable offence punishable with death or imprisonment for life should not be released on bail if there appear reasonable grounds for believing that he is guilty, should as far as possible, be respected by the High Court or the Court of Session in granting bail under Section 439 vide State v. Captain Jagjit Singh, AIR 1962 SC 253.

I am of the considered view that the cancellation of bail can fall in two broad categories : (i) where the Court has granted bail in contravention of the well known factors which are required to be taken into consideration and has, thus, failed to exercise its discretion according to law; and (ii) where the prosecution is able to make out a case falling in one of the categories enumerated by their Lordships of the Supreme Court in Aslam Balbalal Desai (supra). In other words, it is not necessary that in order to cancel bail, in all cases it must be shown that the case falls in one of the categories, such as where the accused is trying to tamper with the prosecution evidence or trying to escape from the jurisdiction of the Court, etc. In the cases falling in the first category, therefore, it is not necessary to make out a case relevant to the second category.

In the facts of the present case, the considerations which prevailed with the learned Additional Sessions Judge make out no case for bail. A total reading of the first information report shows that the complainant was in possession of the plot and, in fact, the deceased had got constructed the boundary wall thereof. No effort appears to have been made by the Court to obtain the report of the Forensic Science Laboratory or to proceed with the trial without that report. On the contrary, the trial appears to have been adjourned from time to time on the mere asking of the Public Prosecutor that the Forensic Science report would take more time in coming. The case of the other accused is clearly distinguishable and, therefore, the learned Additional Sessions Judge was not justified in placing reliance on the fact that the coaccused had been admitted to bail by the learned Sessions Judge.

For the foregoing reasons, I am clearly of the view that not only that no case for bail was made out before the learned Additional Sessions Judge, a clear case for cancellation has been made out here.

With regard to locus standi of the complainant, it is sufficient to point out that the decisions relied on by Mr. Gill relate to the old Code where no provision analogous to Section 439(2) existed.

Accordingly, this petition is allowed and bail of Dharambir respondent No. 2 is cancelled. He shall surrender to custody at once, failing which he shall be got arrested and kept in custody according to law during the trial of the case.