Kabul Singh vs State of Haryana

Dr. Sarojnei Saksena, J.

PetitionerKabul Singh has filed this petition under Section 439(2) of the Code of Criminal Procedure for cancellation of bail granted to respondent No. 2 by the District and Sessions Judge, Rohtak on 14.10.1997.

Briefly stated the facts are that the petitioner''s son was murdered by respondent No. 2 Sunil and four others on 2.7.1997. The First Information Report was lodged on 3.7.1997 at Police Station Beri, Tehsil and District Jhajjar. The case was registered under Sections 302/148 and 149 of the Indian Penal Code against the accused Sunilrespondent No. 2 and four others, namely, Rajbir, Raj Singh, Bijender and Sushi wife of Raj Singh. Accused Sushi was granted bail by the Sessions Judge on 25.7.1997. Thereafter accused Rajbir, Raj Singh and Bijender were also released on bail vide order dated 1.8.1997 passed by the District and Sessions Judge, Rohtak. The main accused is Sunilrespondent No. 2. His bail application was rejected by the High Court, but the District and Sessions Judge, Rohtak, granted him bail vide impugned order dated 14.10.1997 (Annexure P1). Bail was granted to respondent No. 2 on the ground that challan is not filed within 90 days. The petitioner has averred that the police and the accused are hand in glove with each other. The challan was presented by Baljit Singh Inspector Rohtak within 60 days and was sent to the Station House Officer, Police Station, Beri, but the Station House Officer, failed to present the challan in the Court within the statutory limit. This was done in connivance with the accused. With the result, main accused Sunil was granted bail under Section 167(2) of the Code of Criminal Procedure.

The petitioner has also alleged that after his release respondent No. 2 is openly threatening the petitioner and all members of his family inclusive of ladies and eyewitnesses that if anybody had courage to give evidence against them, he would meet the same fate, meaning thereby that he or she too would be eliminated. Sunil is frequently seen with a stick in his hand. The fields of the petitioner and the accused are adjoining. Due to their fear, family members of the petitioner have stopped going to their fields. They are threatening the witnesses also and openly saying that they have enough money to kill two more persons and thus, atmosphere of terror is created by the respondent No. 2. When the accused Sushi was arrested on 4.7.1997, she boldly stated that the accused persons have paid Rs. 1,50,000/ to the police; therefore, the police cannot even touch them. The petitioner many a time reported to the police about threats given by the respondent No. 2, but police never paid any attention to it. If bail granted to the respondent No. 2 is not cancelled, there is every danger to the person and property of the petitioner and his family members. The petitioner also made a representation to the Hon''ble Home Minister, Director General of Police, Haryana and Deputy Inspector General, Rohtak range, but nothing is done. Respondent No. 2 is openly threatening the petitioner and his family members to kill them.

Respondent No. 2 has filed his reply. As the challan was not presented within 90 days from the date of arrest of the respondent No. 2, he was granted bail under Section 167(2) of the Code of Criminal Procedure. It is denied that the respondent No. 2 ever threatened the petitioner or any witness. He never quarrelled or threatened the petitioner or his family members. Co accused Sushi never made such a statement that accused persons has given Rs. 1,50,000/ to the police. False allegations are made against the respondent No. 2. There is no question of any danger to the lives of the petitioner or to any witness. He has not misused the concession of bail; therefore, there is no ground to cancel his bail. All these false allegations are made against him to justify the filing of such a petition.

During arguments, the petitioner''s learned counsel valiantly argued that in this gruesome murder respondent No. 2 is the main accused. His bail petition was dismissed by the High Court. Despite these facts, the learned District and Sessions Judge, Rohtak, has granted him bail under Section 167(2) of the Code of Criminal Procedure. The accused persons gave Rs. 1,50,000/ to the police and therefore in connivance with them and just to facilitate and favour respondent No. 2, the Station House Officer, Police Station Beri did not present the challan in the Court within the statutory period of 90 days from the date of arrest of the respondent No. 2. The investigation was concluded within 60 days; challan was prepared by the Investigating Officer, but with an oblique motive, challan was not presented by the Station House Officer.

The learned counsel also submitted that after being released on bail, respondent No. 2 is openly threatening the petitioner, members of his family and other eyewitnesses with dire consequences. As he has got support of the police, he is emboldened and threatened the witnesses with dire consequences. The petitioner made several attempts to lodge a complaint against respondent No. 2 with the police, but no attention was paid to his complaint. He also sent a representation to that effect to the Hon''ble Home Minister, Director General of Police, Haryana and Deputy Inspector General, Rohtak range (Annexure P2), but with no result. On these facts, the learned counsel strongly canvassed that the bail order granted in favour of respondent No. 2 be cancelled in the interest of justice.

Learned counsel appearing for respondent No. 2 refuted all the allegations of oral threats alleged to have been given by respondent No. 2 to petitioner or any other witness or even to family members of the petitioner. He submitted that as the challan was not presented within the statutory period of 90 days from the date of arrest of respondent No. 2, he had a statutory right to be enlarged on bail under Section 167(2) of the Code of Criminal Procedure and on his ground alone, he was enlarged on bail by the District and Sessions Judge, Rohtak vide impugned order (Annexure P1). He also argued that no valid ground is made out to cancel the said bail order. There is no material on record to show that respondent No. 2 or any other accused ever threatened the petitioner, any member of his family or any witness of this murder case. He also argued that there is no substance in this allegation that at the time of arrest, Sushi made a declaration that accused persons have paid Rs. 1,50,000/ to the police and thereby they have got full support of the police. If the challan is not presented within the statutory period of 90 days, the fault lies with the Investigating Agency. The accused persons never approached, neither they could have approached the police praying that the challan be not presented within the statutory period. The petitioner might have sent a representation to the Hon''ble Home Minister and higher police officers levelling certain baseless allegations against respondent No. 2, but as the allegations were hollow and baseless, no action was taken by these authorities.

The learned State counsel submitted that the challan was presented on 11.11.1997 after the statutory period of 90 days from the date of arrest of the accused; therefore, the police department has initiated departmental enquiry against Babu Lal, Assistant Sub Inspector and also against Jai Parkash, Sub Inspector, Police Station Beri District Rohtak. The learned Assistant Advocate General, Haryana, also clarified that no complaint was ever made to the police by the petitioner or by any witness of this case alleging that the respondent No. 2 or any accused has given any threat to anyone of them. If any such complaint would have been made, the police authorities must have recorded the complaint and proceeded with investigation.

After hearing the rival contentions, in my considered view, the petition deserves to be rejected.

No doubt, even if the accused is released under Section 167(2) of the Code of Criminal Procedure, his bail can be cancelled if subsequently it is found that he is abusing his bail, but for that plausible/cogent grounds are required to be established by the petitioner, which are as follows :

(i) indulges again in similar activities;

(ii) interferes with course of investigation;

(iii) attempts to tamper with evidence;

(iv) threatens witnesses;

(v) likelihood of not attending the case or not making him available for investigation.

So far as investigation part is concerned, it is already over; challan is presented in the Court. The only ground alleged in the petition is that respondent No. 2 is threatening the witnesses. No doubt, in para No. 5 of the petition under consideration such like allegations are made, but there is no other material on record to substantiate these allegations. The petitioner has sent the representation (Annexure P2) to the Hon''ble Home Minister as well as to higher police officers. In this representation also, such like allegations are made. The department must have made some enquiry with regard to this representation. Perhaps as a result of this enquiry, the department has initiated enquiry against Sub Inspector Babu Lal and Jai Parkash, who are alleged to be responsible for nonpresentation of challan within 90 days of the arrest of the accused and thus making a ground for bail available to respondent No. 2 under Section 167(2) of the Code of Criminal Procedure, but still there is nothing on record to suggest that these police officers were in connivance with respondent No. 2 and thereby they failed to present challan within the statutory period.

There is no allegation in this petition that the police has not investigated into this offence in right earnest. No lacuna is pointed out in the investigation. The only grievance is that the challan was not presented within 90 days though investigation was complete within 60 days. What was the reason for that is subject matter of that departmental enquiry, but unless there is some specific and positive assertion that this was done at the instance of respondent No. 2, on the ground of nonfiling of the challan within the statutory period, his bail cannot be cancelled.

So far as the alleged threats are concerned, such allegations can be made against any accused by any complainant. If really, the petitioner or any other witness would have been threatened by any of the accused, he/they would have positively lodged a report with the police. They could have also filed a complaint in the Criminal Court, if not, they could have apprised the committal Court/trial Court of such like threats by filing a petition with specific allegations enumerating all the details as to on which date, in whose presence, which accused threatened him/them. The allegations made in para No. 5 of the petition are very vague. Hence, on the basis of such like allegations, bail granted to the respondent No. 2 under Section 167(2) of the Code of Criminal Procedure cannot be cancelled.

Accordingly, finding no merit in the petition, it is hereby dismissed.