Harbhajan Singh Dhatt vs State of Punjab

R.L. Anand, J.

By this order I dispose of Crl Misc. No. 6427M of 1997 titled Harbhajan Singh Dhatt v. State of Punjab and another a petition moved by the petitioner for the recalling of the order dated 10th March, 1997 vide which bail was granted to respondent No. 2Jaspal Singh D.S.P., on the basis of the alleged false averments made by the counsel appearing on behalf of respondent No. 2 before the Hon''ble Judge.

Before I touch the submissions which are raised by the learned counsel for the parties, it will be useful for me to incorporate a few facts in order to show under what circumstances the death of Shri Kuljit Singh had taken place. According to the allegations of the prosecution, said Shri Kuljit Singh was abducted, tortured and subsequently was done to death. Last time he was in the custody of the Police Party, which was headed by D.S.P. Jaspal Singh respondent No. 2. Respondent No. 2 was the person who arrested the deceased from village Tahliwala Chowk on the night between 25th and 26th July, 1989. Though at one point of time the stand taken up by the State was that Shri Kuljit Singh escaped from the police custody, but this explanation never found favour with the Hon''ble Supreme Court even, which directed for a Commission of Inquiry. The Commission of Inquiry indicted respondent No. 2 besides other members of the Police Party and they were held prima facie guilty under section 364 of the Indian Penal Code. Respondent No. 2 filed a petition under Section 439, Cr.P.C., i.e. Crl. Misc. No. 3657M of 1997. This petition came up for hearing before Hon''ble Mr. Justice Swatantar Kumar on 10th March, 1997. Bail was granted to respondent No. 2 and the following order was passed, which I would like to requote in order to appreciate the contentions of the parties :

"Learned counsel for the petitioner submits that a ruqa was sent to the petitioner in police station and the police had no choice but to record the same in the DDR and consequently register the F.I.R. Learned counsel further submits that the two coaccused have already been released on bail. However, their role was different to that of Sardul Singh and Sita Ram, who have been declined bail.

In the facts and circumstances of the case and without commenting anything on the merits of the case, Jaspal Singh, petitioner, is directed to be released on bail, subject to his furnishing bail bonds in the sum of Rs. 25,000/ with one surety in the like amount, to the satisfaction of the Chief Judicial Magistrate/Duty Magistrate, Hoshiarpur. He will not leave the territorial jurisdiction of this Court without leave of that court. The petition is accordingly disposed of."

Through the present petition, the petitioner Shri Harbhajan Singh Dhatt has prayed that the order dated 10th March, 1997 be recalled and the bail which was granted to Shri Jaspal Singh, D.S.P., should be cancelled, as he through his counsel had made wrong submissions before the Hon''ble Judge. It may be mentioned here that this petition was listed before his Lordship, but his Lordship was pleased to say that he did not want to deal with the matter and under the order of Hon''ble the Chief Justice, the matter has come before this Bench for disposal.

So far as the position of law while dealing with the petition under Section 439, Cr.P.C., is concerned, repeatedly guidelines have been given by the Hon''ble Supreme Court as well as by various High Courts and the summary of these guidelines can be described in the following manner :

Nature and gravity of the circumstances in which the offence was committed.

Position and status of the accused with reference to the victim and the witnesses.

Likelihood of the accused fleeing from justice.

Likelihood of the accused repeating the offence or jeopardising his own life being faced with a grim prospect of possible conviction in the case.

Likelihood of tampering with witnesses.

History of the case as well as of its investigation.

other relevant grounds amenable to variable factors.

The case law has been cited as State of West Bengal v. Nebulal Shaw, 1997(3) R.C.R. 39. Learned Counsel appearing on behalf of respondent No. 2 has also referred to Aslam Babalal Desai v. State of Maharashtra, 1993(1) R.C.R. 600; and The Secretary Tamil Nady Wakf Board and another v. Syed Fatima Nachi, 1996(2) All India Criminal Law Reporter 653. The case law which has been propounded by the Hon''ble Supreme Court in both the citations is not different than the on which I have just quoted above after taking advantage of the Calcutta High Court.

I may further add that the guidelines for cancellation of bail are different than the one granting the bail either under Section 438 or under Section 437 or under Section 439(1) of the Code of Criminal Procedure. This Court is also conscious of the fact that for cancellation of bail, cogent and strong grounds are required because the liberty of an individual is involved and if adverse order is passed, ultimately his liberty is likely to be affected. But also it is the law of the land that if a bail has been taken by a person, which is purely a discretion of the Court, by making wrong averments/wrong representations/wrong submissions, the Law Courts are not helpless in rectifying the orders passed on wrong assertions made on behalf of the accused. Here is the case where, in the opinion of this Court, the learned counsel appearing on behalf of respondent No. 2 (Shri T.P.S. Tung) did not bring proper facts before the Court at the time of getting bail for his client. It is the duty of the counsel appearing on behalf of the State as well as the counsel appearing on behalf of the accused to assist the Court in a proper manner. The Law Courts always have full faith in the counsel who assist them. The impugned order dated 10th March, 1997 indicates that at that time the State was not being assisted by any counsel appearing on behalf of the complainant and now the complainant has come for the cancellation of the bail. If the State was not properly informed or if the State could not properly assist his Lordship at the time of the passing of the impugned order, it does not mean that the complainant has lost his locus standi to assist this Court.

As I have stated above, it is D.S.P. Jaspal Singh respondent, who was leading the Police Party. The last custody of Shri Kuljit Singh was with the Police Party headed by D.S.P. Jaspal Singh. In these circumstances there is a prima facie evidence indicting Shri Jaspal Singh under Section 364. It is also the common case of the parties that till today the whereabouts of Shri Kuljit Singh are not known to anybody. A reasonable inference in these circumstances can always be drawn that Shri Kuljit Singh was kidnapped/abducted with the intention to cause his death.

Now the question arises whether with such serious allegations, bail should be granted to Shri Jaspal Singh or not ? He was the propounder and offender of the crime. He was leading the Police Party. I do not know whether he was acting under the instructions of some superiors or of his own, but his conduct was certainly such, which is deplorable and such a person, specially a Police Officer, who takes the law into his own hands, is not entitled to the grant of bail. No hard and fast rules can be laid down in this regard. However, certain guidelines have been given by various Courts.

Now it is to be seen under what circumstances the impugned order was passed. A representation was made to the Court that the role of Shri Jaspal Singh, D.S.P., was totally innocent. He had nothing to do in the Police Party. He was just a receiver of the ruqa while sitting in the Police Party and he has simply registered the case. These were the factors which were represented to the Court and these factors primarily prevailed upon the mind of the Hon''ble Judge while granting the bail. The appreciation was not proper. As a matter of fact, Shri Jaspal Singh was leading the Police Party. He was prima facie the author of the crime and the all stress of criminality prima facie falls upon him, especially when the custody of Shri Kuljit Singh has not been properly explained by him. The position and status of respondent No. 2 with reference to the victim and the witnesses is an additional factor, which compels this Court for the recalling of the order dated 10th March, 1997. There is every likelihood that Shri Jaspal Singh would like to save his skin and the possibility of his role in tampering with the prosecution evidence can also not be mitigated. There are also other grounds amenable to variable factors, which have led to the irresistible conclusion on the part of this Court that the order dated 10th March, 1997 deserves to be recalled. I do not want to comment any further upon the role of the Lawyer, who appeared on his behalf before the Lordship on that date. Certainly this Court expects the lawyers to assist the Courts so that real justice is imparted to all the litigants.

Resultantly, I allow this petition and recall the order dated 10th March, 1997 passed in Criminal Misc. No. 3657M of 1997 and reject the bail application under Section 439, Cr.P.C., moved by Shri Jaspal Singh, D.S.P. Directions are given to the Chief Judicial Magistrate, Hoshiarpur, to issue nonbailable warrants of arrest against Shri Jaspal Singh and take him into custody.

Copy of the order be sent to the Chief Judicial Magistrate, Hoshiarpur, for compliance.