Gurmej Singh vs State of Punjab

P.K. Jain, J.

This petition has been filed under section 439(2) of the Code of Criminal Procedure (for short the Code) seeking cancellation of bail granted to Bikkar Singh son of Tara Singh, respondent No. 2 in Criminal Misc. No. 13626M of 1995 by order dated 8.9.1995, in FIR No. 145 dated 29.9.1994 registered at Police Station Zira for offence under sections 302/148/149/450/452 of the Indian Penal Code.

The brief facts necessary for the disposal of this petition are that Mukhtiar Singh (now deceased) alongwith his two brothers Kashmir Singh and Balwinder Singh and his brotherinlaw Ajit Singh was convicted for committing the murder of one Surta Singh Sarpanch and was undergoing sentence in Nabha Jail. He had come on parole for fifteen days about 7/8 days prior to the day of the occurrence. According to the allegations contained in the First Information Report in question, the respondent No. 2 alongwith Jagmohan Singh and Dibban Singh sons of Surta Singh (referred to above), Binder Singh and Chhinder Singh sons of Niranjan Singh, Sona Singh and Chhana Singh duly armed with deadly and lethal weapons committed the murder of aforesaid Mukhtiar Singh on 29.9.1994 at about 10 A.M. in village Daulewala, Police Station Zira. First Information Report was recorded on the statement of Gurmej Singh, the brother of the deceased. All the accused were arrested. Bikkar Singh respondent No. 2 herein, one of the said accused, moved Criminal Misc. No. 13626M of 1995 seeking bail on the ground that he was 14 years of age on the date of the alleged commission of the offence. This petition was disposed of vide order dated 8.9.1995 which reads as under:

Concededly, the petitioner is only 14 years of age and is juvenile offender.

Bail to the satisfaction of C.J.M., Ferozepur.

8th September, 1995 Sd/ Judge"

In pursuance of the aforesaid order Bikkar Singh was released on bail by the Chief Judicial Magistrate, Ferozepur.

Gurmej Singh, the complainant on whose statement the First Information Report in question was recorded, has moved the present petition for cancellation of the bail granted to Bikkar Singh on the ground that respondent No. 2 played a fraud on this court by supersssing material facts, that according to the birth entry (Annexure P2) his date of birth is 17.3.1976 and he was 18 years 6 months and 12 days old on the date of the occurrence in question i.e. 29.9.1994, and that if he had not suppressed the true and material facts regarding his age, he would not have been admitted to bail in view of the heinous nature of the offence and the role assigned to him for the commission of the said offence.

Notice was issued to the respondent. No reply in writing has been filed either by the State or by respondent No. 2. During the course of the hearing of this petition, the original record regarding the birth entry of respondent No. 2 was summoned from the office of Civil Surgeon, Ferozepur. The said record was produced on 28.2.1996 by the Junior Statistical Assistant. At serial No. 12 of this record, there is an entry regarding the birth of one male child Bikkar Singh whose father''s name is recorded as Tara Singh and mother''s name as Kartar Kaur. However, the learned counsel for respondent No. 2 urged at the Bar that there is no presumption in law that this entry relates to respondent No. 2 and none else. To resolve the said controversy and particularly keeping in view the provisions of Section 32 of the Juvenile Justice Act, 1986, the trial court was directed to make an enquiry as to age of respondent No. 2 on the date of the commission of the offence in question. After affording opportunity to the complainant, the prosecution and respondent No. 2 and after recording the evidence of the parties, the Additional Sessions Judge, Ferozepur has submitted a report that age of respondent No. 2 on the date of the commission of the offence in question was 18 years 6 months and 12 days. In other words, it was found that the Date of Birth of respondent No. 2 is 17.3.1976 as recorded in the Birth record (Annexure P2).

Learned counsel for the petitioner has argued that from a perusal of the copy of the Birth entry (Annexure P2) and the detailed enquiry report submitted by the trial Court, it is evident that respondent No. 2 was more than 18 years of age on the date of the commission of the alleged offence and he obtained bail from this court by playing fraud and misrepresenting his age to be 14 years. It has been further alleged by the learned counsel that if the true facts had been there before the court, the respondent No. 2 could not have been admitted to bail in view of the heinous nature of the offence and the part played by respondent No. 2 in the commission thereof. Thus it has been argued by the learned counsel that the bail granted to respondent No. 2 is liable to be cancelled.

On the other hand, learned counsel for respondent No. 2 has argued that once the bail has been granted to respondent No. 2, it should not be cancelled without some strong reasons. It has been pointed out by the learned counsel that after his release from custody, the respondent No. 2 has not tampered with any witness nor he has committed any other offence. It has also been argued by the learned counsel that only role assigned to respondent No. 2 is that he had given a lathi blow to the deceased on his lips. Thus it has been argued that mere fact that respondent No. 2 had represented himself to be of 14 years of age in itself is not enough to cancel the concession of bail granted to him.

I have given my careful thought to the respective arguments advanced at the Bar.

It may be pointed out that the correctness of the report dated 19.4.1996 submitted by Additional Sessions Judge, Ferozepur regarding the determination of the age of respondent No. 2 on the date of the commission of the offence in question has not been disputed befdore me by either of the parties at the Bar. In other words, the respondent No. 2 was more than 18 years of age on the day of the occurrence. However, he secured bail by order dated 8.9.1995 on the sole ground that he was 14 years of age on the date of the commission of the offence and was a juvenile offender. It is thus evident that respondent No. 2 wilfully suppressed the material fact regarding his age and secured bail on a false pretence which amounts to the commission of fraud upon the court in the eyes of law.

It is well settled that fraud vitiates the most solemn proceedings of Courts of Justice and reopens and nullifies all judicial acts. It is competent to any Court to vacate any judgment, order or decree if the same was announced through fraud, contrivance or (sic) of any description. Therefore, once it is shown that a person intentionally misled the court by playing a fraud upon it and procured some order in consequence thereof, such order stands vitiated on account of the said fraud.

In State v. Sanjay Gandhi, AIR 1978 SC 961 the Supreme Court observed that "rejection of bail, when bail is applied for, is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a nonbailable case than to cancel a bail once granted. That is because cancellation of bail interferes with the liberty already secured by the accused. The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. That does not mean that the power, though extraordinary in character, must not be exercised even if the ends of justice so demand."

These views have been approved and reiterated by the apex Court in its subsequent judgment rendered in Aslam Babalal Desai v. State of Maharashtra, 1993(1) RCR 600 : AIR 1993 SC 1 .

In the present case, the respondent No. 2 procured the bail by deceiptful means i.e. by suppressing the truth and misrepresenting his age. This fact in itself is enough to say that there is a cogent and strong circumstance to cancel the bail of respondent No. 2. It may also be pointed out that respondent No. 2 is named as one of the assailants, who was armed with a lethal weapon and had caused an injury on the face of the deceased while he was lying on the ground.

For the reasons mentioned above, this petition is allowed. Bail granted to Bikkar Singhthe respondent No. 2 herein by order dated 8.9.1995 in Criminal Misc. No. 13626M of 1995 is hereby cancelled. He shall surrender to the judicial custody forthwith.