Nishan Singh vs Gian Singh

V.S. Aggarwal, J. (Oral)

This order will dispose of the petition filed by Nishan Singh under Section 439(2) of the Code of Criminal Procedure seeking cancellation of the bail granted to respondents 1 and 2 (Gian Singh and Dalbiro) on 1.3.1996.

The relevant facts are that on basis of the statement of Mukhtiar Singh first information report was recorded. He had recited that he had married his daughter Jasbir Kaur with Dalbir Singh. After four years of the marriage, the fatherinlaw of Jasbir Kaur, brother and sisterinlaw started demanding dowry. On account of that demand he used to give cash to his daughter from time to time. In spite of this they were harassing his daughter and even used to physically assault her. He went to the house of Dalbir Singh number of times. His daughter used to complain about the demand of dowry. His daughter had come to his house. She was unwell and he got her treated. Rs. 10,000/ were demanded by her. Subsequently on the fateful day the complainant with Sarpanch of the village had gone to village Bhahudin. they were informed that Jasbir Kaur was in the hospital. She recited to her father that she was caught hold of by Dalbir Singh and her brotherinlaw Gian Singh. Karnail Singh sprinkled oil. Her fatherinlaw said that she has not brought Rs. 10,000/ and that she should be killed by burning. Dalbiro brought the matchbox and she was set on fire.

Subsequently, she succumbed to the burn injuries.

Respondents 1 and 2 preferred a petition seeking bail with respect to offences punishable under Section 304B IPC. This Court had granted bail to respondents 1 and 2 by passing the following order :

"Names of the petitioners in the challan had been added in column No. 2. It is being contended that deceased was not in a position to make a statement and in fact had been declared unfit for doing so by the Doctor. Petitioner No. 1 Gian Singh is brotherinlaw of husband of the deceased while petitioner No. 2 is sisterinlaw of the deceased.

Taking note of facts and circumstances, petitioners are directed to be enlarged on bail on their each executing a personal bond to a sum of Rs. 10,000/ with a surety of the like amount to the satisfaction of Chief Judicial Magistrate, Sirsa."

The petitioner by virtue of the present petition seeks withdrawal of the said order alleging that material facts have been suppressed. According to the petitioner, Harjit Singh son of the deceased had also been interrogated and had named respondents 1 and 2. Furthermore the application of the co accused had been dismissed. In addition to that it had been asserted that respondents 1 and 2 are giving threats to the witnesses.

The petition has been contested and in the reply it had been alleged that there is only a child witness (Harjit Singh). His statement has to be scrutinized with great caution. No threat has been given nor any fact was suppressed from the court.

The arguments advanced by the learned counsel for the petitioner were confined to the pleas in the petition. He urged that at the time when respondents 1 and 2 were admitted to bail, the fact that there is a child witness also had been suppressed from the court. Even the fact that the application of the coaccused was dismissed was not brought to the notice of the court. In addition to that respondents 1 and 2 were stated to be threatening the witnesses. Accordingly, as per the learned counsel the concession be withdrawn. The allegations were controverted by respondents 1 and 2.

The Code of Criminal Procedure gives vast powers to the Court of Sessions and the High Courts in granting the bail. Certain facts have always to be taken note of before a person is admitted to bail in a nonbailable offence. The same are not relevant for disposal of the present petition. But sub section (2) of Section 439 Cr.P.C. further confers the powers on the High Court or the Court of Sessions that any person who is admitted to bail may be arrested or taken to custody. In its stark brevity the Code of Criminal Procedure does not provide the guidelines as to when a person who has since been admitted to bail could be committed again to custody or his bail cancelled.

The question as to under what circumstances the bail once granted can be cancelled has been considered more often than once by different Courts. If the bail has been granted improperly without jurisdiction or certain facts were suppressed which are material, the same can be cancelled. In the case of Smt. Rajani Rani Kar and another v. Goli Pradhan and others, 1992(3) Crimes 181, the Orissa High Court in this regard had concluded :

"The bail of an accused can by cancelled, if it is found that he had been granted bail improperly and arbitrarily without jurisdiction or if it is seen that he has misutilised the liberty given to him by his admission to bail. In this case, although there is no clinching material to indicate that the opposite parties have misutilised the liberty given to them by admitting them to bail, their bail has been improperly and arbitrarily granted without jurisdiction so far as the opposite parties Kishore Chandra Pradhan and Abhimanyu Pradhan are concerned."

Reference to the decision of the Supreme Court in the case of Shahzad Hasan Khan v. Ishtiaq Hasan Khan and another, AIR 1987 SC 1613 at this stage is not appropriate. In the cited case there were three successive bail applications. They had been rejected by a particular Judge of the High Court. Another Judge as Vacation Judge admitted the accused to bail. The Supreme Court did not approve of such a practice and thereafter on merits had cancelled the bail of the accused. That is not so in the facts of the present case. But guidelines in this regard are provided in the case State through the Delhi Administration v. Sanjay Gandhi, AIR 1978 SC 961. The Supreme Court took note of the fact that cancellation of the bail is not to be granted easily. In paragraph 13 it was held :

"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 granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can be and large the permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial."

Subsequently, the Supreme Court went on to observe that in an application for cancellation of the bail it is not necessary for the prosecution to prove by a mathematical certainty that witnesses are being threatened. It was noted in paragraph 14 in the following words :

"Indeed, proof of facts by preponderance of probabilities as in a civil case is not foreign to criminal jurisprudence because, in cases where the statute raises a presumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused. The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail."

Further guidelines had been drawn by the Patna High Court in the case of Surendra Singh v. State of Bihar and others, 1990 Cri.L.J. 1904. After referring the case of Sanjay Gandhi (supra) the Court held that on the following grounds the bail can be cancelled :

"1. When the accused found tampering with the evidence either during investigation or during trial.

When the person on bail commits similar offence or any heinous offence during the period of bail.

When the accused has absconded and trial of the case gets delayed on that account.

When the offence so committed by the accused, that had created serious law and order problem in the society and accused had become a hazard on the peaceful living of the people.

If the High Court finds that lower court granting bail has exercised its judicial power wrongly.

If the High Court or Sessions Courts find that accused has misused the privilege of bail."

Therefore, before cancelling the bail once granted, it has to be seen if certain facts have been suppressed from the court and the order so passed is patently erroneous. If the witnesses have been threatened or the accused is trying to run away from the jurisdiction of the court, one would hasten to add that an exhaustive list can never be drawn.

Learned counsel for the petitioner as mentioned above urged that application of the coaccused seeking bail had been dismissed by another Bench of this Court and therefore, there was no ground to admit respondents 1 and 2 to bail. However, the contention is without merit. The bail application of each of the accused has to be considered on its own merits. The facts qua each petitioner have to be looked into. In case of respondents 1 and 2 it was noted that the deceased was not in a position to make a statement and even the challan was not presented against respondents 1 and 2. They had been summoned by the Court as accused. Keeping in view these facts, if the bail application of the coaccused had been rejected, there was no legal bar in admitting respondents 1 and 2 to bail.

The main argument advanced was that Harjit Singh is a child witness and he had made a statement to the police even against respondents 1 and 2. So far as this particular argument is concerned, the Court at this stage is reluctant to express any opinion on the value of the statement of the witness who has yet to be examined in the trial court. But the witness had already been examined and when the challan was not presented against respondents 1 and 2, the Investigating Officer felt that no case was drawn against the private respondents. The material difference is not going to be made even if the statement of Harjit Singh in view of the facts stated above was to be considered.

As a lest straw, it was urged that respondent 1 and 2 have been threatening the witnesses. It is remembered that such a threat need not be proved meticulously but the complaint of the petitioner in this regard was stated to have investigated and not found to be correct. For purposes of the present order, therefore, the contention has no substance.

For these reasons, the petition is without merit and accordingly it is dismissed.