Harjit Singh vs Jasbir Singh

Dr. Sarojnei Saksena, J.

Petitioner Harjit Singh has filed this petition under Section 439(2) of the Code of Criminal Procedure for cancellation of anticipatory bail granted to respondent Nos. 1 and 2 in connection with FIR No. 105 of 1996 dated 18.8.1996 lodged at P.S. Sarhali, District Amritsar under Sections 307/452/506/148/149 IPC read with Sections 25, 27, 54 and 59 of the Arms Act. Petitioner has averred that on 18.8.1996 sons of petitioner Harpreet Singh and Harminder Singh had a scuffle with respondent No. 1 Jasbir Singh while they were having drinks in the house of one Avtar Singh. When they came back home and were having meals, respondents alongwith 5/6 other persons came to the residence of the petitioner armed with fire arms and started hurling abuses loudly and called the sons of the petitioner out of the house. When the petitioner alongwith his sons came out of his house, respondent No. 1 Jasbir Singh who was armed with a double barrel gun fired upon the petitioner and his sons with the intention to kill them but they escaped by hiding themselves between the walls. The petitioner then lodged the aforesaid F.I.R.

Respondent No. 1 who is posted at CIA staff Tarn Taran on getting information of the registration of the said case against him and respondent No. 2 manipulated registration of false case against the sons of the petitioner from one Charanjit Kaur. Thus on the basis of the report lodged by Charanjit Kaur F.I.R. No. 140/96 dated 18.8.1996 under sections 294, 354, 34 IPC was registered at P.S. City Tarn Taran. During investigation, Deputy Superintendent of Police, Tarn Taran found F.I.R. 140/96 (supra) absolutely false and frivolous and he not only cancelled the F.I.R. but also ordered proceeding under Section 182 Cr.P.C. against the complainant Charanjit Kaur.

Respondents filed an application under section 438 Cr.P.C. before Addl. Sessions Judge, Amritsar stating therein falsely that FIR No. 105 of 1996 is a counterblast to FIR 140/96 dated 18.8.1996. Thus they not only misled the Court but virtually practiced fraud and obtained the impugned bail order (Annexure P.4) in their favour. The petitioner averred that the grant of prearrest bail to the respondents in a case under Section 307 IPC had virtually closed the investigation of the case as neither any recovery has been effected nor unidentified persons could be identified by the petitioners. It is also averred that respondent No. 1 who is Sub Inspector with CIA Staff, Tarn Taran is openly threatening the petitioner of dire consequences. On 10.10.1996 respondent No. 1 alongwith other persons came to the residence of the petitioner in his village giving him filthy abuses and threatened him and his sons to eliminate them if they do not withdraw their FIR (No. 105 of 1996). Petitioner lodged complaint with the police about this incident as well but no action was taken. Petitioner has appended copy of the petition as Annexure P.5. He also sent a representation (Annexure P.6) to the Chief Minister Punjab, and S.S.P. Tarn Taran. It is also averred that respondent No. 1 is a desperate kind of person and has earlier been involved in many criminal activities. Hence, it is prayed that grant of anticipatory bail in such a serious offence has not only hampered the investigation but the respondents are also misusing the concession of bail by trying to intimidate the petitioners and, therefore, the impugned bail order be cancelled.

Respondent Nos. 1 and 2 filed their reply and raised preliminary objection that the petitioner has no locus standi to file this petition. It is also contended that as per the law laid down by the High Court as well as by the Apex Court, it is only the State which has the right to file such a petition for cancellation of bail. It is denied that respondents have misrepresented the facts before the Addl. Sessions Judge, Amritsar, whereupon anticipatory bail order was passed in their favour. Petitioner''s sons were involved in a case under sections 294/354/34 IPC. It is also alleged that the story as put up in FIR No. 105 of 18.8.1996 is an afterthought in order to cover up the case registered against the sons of the petitioner under Sections 294/354/34 IPC. It is also averred that petitioner is an influential person and is having political links. Therefore, he got F.I.R. 105/1996 cancelled but complainant Charanjit Kaur had filed a complaint in the Court of Shri Gurjant Singh, Judicial Magistrate Ist Class, Tarn Taran. Petitioner''s both the sons have been summoned by the Court vide order dated 5.10.1996. They also pleaded that ld. Addl. Sessions Judge, Amritsar has granted anticipatory bail after perusing the record. Case against these respondents has been registered at the behest of the petitioner only to harass these respondents and to pressurise them as respondent Jaswant Singh is a witness in the complaint lodged by Charanjit Kaur.

At the very outset, learned Deputy Advocate General, Shri G.S. Gill has admitted that Charanjit Kaur lodged report No. 140/1996 on 19.8.1996. He has submitted photo copy of that report on record.

Learned counsel for respondent No. 1 has contended that from the impugned bail order it is evident that during arguments it was strongly convassed that Charanjit Kaur lodged report No. 140/96 against the sons of the petitioner on 18.8.1996 and as respondent No. 2 is a witness therein as a counterblast to this report, petitioner lodged FIR No. 105/96 against these respondents under Sections 307/452/506/148/149 IPC read with Sections 25, 27, 54 and 59 of the Arms Act. When this argument was advanced before the ld. Addl. Sessions Judge he confirmed the anticipatory bail order granted earlier in favour of respondent Nos. 1 and 2. Thus according to him these respondents have obtained the impugned bail order by practising fraud as well as by making misstatement before the said Court. Hence, on this ground, the impugned bail order is liable to be set aside. To support this contention he has relied on Gurmej Singh v. State of Punjab, 1996(2) RCR 388 . He also submitted that because respondent No. 1 is S.I. CIA Staff, he has misused his official position and has threatened the petitioner and his sons of dire consequences in case the petitioner does not withdraw his aforementioned FIR No. 105 of 1996. Petitioner made a complaint with the police with regard to that threat (Annexure P.5) and also submitted a representation to the Chief Minister and S.S.P. Taran (Annexure P.6) but no relief could be given to the petitioner. Because respondent Nos. 1 and 2 are released on anticipatory bail, no recovery could be made and no identification parade was held to identify the other persons who were with these respondents at the time of commission of the said offence.

Respondents'' learned counsel submitted that no misstatement of fact was made when the impugned order was passed. No fraud was practised by these respondents. He clarified that in the bail petition (copy of which is on record) there is only a typographical mistake whereby date of this report No. 140/96 is typed as 18.8.1996 though the time of occurrence is correctly mentioned in it as 3.30 P.M. on 18.8.1996. After considering the merits of the case, learned Addl. Sessions Judge has granted impugned bail order Annexure P.3, in their favour. Allegation of giving threat or abusing the complainant are usually made against any accused when he is enlarged on bail. Even if respondents were enlarged on anticipatory bail, the Investigating Officer could have effected recovery if at all it was needed during investigation of that case. He also submitted that respondent No. 1 does not have any double barrel gun. False report (105/1996) is lodged by the petitioner against these respondents.

After hearing the rival contentions, in my considered view the impugned order deserves to be cancelled. It is settled law that fraud vitiates the most solemn proceedings of the Court of Justice and reopens and nullifies all judicial acts. The court is competent to vacate any judgment, order or decree if the same was announced through fraud, contrivance or by making mis statement of any description. Therefore, it is apparent that once it is shown that any person has intentionally misled the Court by playing fraud upon it and has 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 Apex 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 judgement rendered in Aslam Babalal Desai v. State of Maharashtra, 1993(1) RCR 600 : AIR 1993 SC 1.

In the present case, it is pertinent to mention that respondent No. 1 is Sub Inspector CIA Staff and respondent No. is a Constable. These respondents were posted in Tarn Taran itself. FIR No. 140/96 was lodged by Charanjit Kaur on 19.8.1996 but in their bail application under section 438 of the Code they deliberately made misstatement that this report is counterblast to the report lodged by Charanjit Kaur lodged on 18.8.1996. This report No. 140/96 is lodged by father of Harpreet Singh alias Happy and Harminderjit Singh alias Sunny on 18.8.1996. From the impugned order, it is clear that this was not only averred in the bail petition but even the learned counsel appearing for respondents in that bail matter convassed that as a result of FIR 140 of 18.8.1996, father of Harpreet Singh and Harminderjit Singh has lodged this false report (105/1996) against these respondents. Thereby fraud was practised on the court as it was misled and the Court held that keeping in view the fact that FIR No. 140/96 dated 18.8.1996 has been registered against Harpreet Singh alias Happy and Harminderjit Singh alias Sunny in Police Station Tarn Taran for an offence under Section 354 IPC and the present FIR No. 105 of 1996 has been registered at the instance of Harjit Singh father of Harpreet Singh alias Happy and Harminder Singh alias Sunny and keeping in view the fact that Jasbir Singh being Sub Inspector must be armed with his service revolver and Jaswant Singh is prosecution witness in case FIR No. 140/96 dated 18.8.96 PS City Tarn Taran against Harpreet Singh alias Happy and Harminderjit Singh alias Sunny, the accusedapplicants are granted anticipatory bail.

Thus it is apparent that these police officials have practised fraud on the court by misstating in their bail petition that report No. 140/96 was lodged by Charanjit Kaur on 18.8.1996 and also convassed that report No. 105/96 lodged by the petitioner against them is a counterblast to this aforementioned report, they obtained impugned bail order. On this ground alone, the impugned bail order is vitiated and is liable to be set aside. Accordingly, the impugned bail order is set aside and the bail is cancelled. It is ordered that these respondents shall surrender before the trial Court to be taken in judicial custody within three days from today. Surety should also ensure that they surrender to the trial Court.

Learned Deputy Advocate General is also directed to convey this order to Sr. Superintendent of Police, Tarn Taran, District Amritsar for compliance.

Copy of the order be sent to trial Court.