Rajeev Shukla vs State of U.P. and Others

J.C. Gupta, J.—Bail granted to opposite party Nos. 2 and 3 by the trial court by the order dated 23.10.98 is sought to be cancelled by means of this application which has been moved by the complainant before this Court.

In relation to an incident which allegedly occurred on 26.1.97 at 7.30 p.m. in which five persons were gunned down and five others received fire-arm injuries, the F.I.R. was lodged at 9.10 p.m. and Case, Crime No. 33 of 1997 under Sections 147, 148, 149. 307, 302, 34 and 395 IPC P.S. Kotwali, district Hamirpur was registered. Opposite party Nos. 2 & 3 armed with fire arms are said to have participated in the firing. The police investigated the case and after its completion submitted charge-sheet wherein the said opposite parties were shown as absconders because they could not be arrested despite proceeding drawn under Sections 82 and 83 Code of Criminal Procedure It is alleged that the said opposite parties did not surrender themselves before the Court below instead they filed a writ petition Nos. 598/97 and the same was dismissed by a Bench of this Court by the order dated 4.3.97 with the observation that the Petitioners could move an application u/s 156, Code of Criminal Procedure before the concerned Magistrate for redressal of their grievances in respect of the cross F.I.R. and that they could approach the Principal Secretary of Home, U.P. Govt. or D.G. Police for passing appropriate orders for getting the investigation of the case done through C.B.C.I.D. Ashok Kumar Singh Chandel, opposite party No. 2 then filed writ petition No. 1049 (MD) of 1997 before the Lucknow Bench of this Court seeking quashing of the F.I.R. and for issuing a further direction for transferring the investigation to some other agency including C.B.C.I.D. After the exchange of the counter-affidavit and rejoinder-affidavit, the said writ petition was also dismissed by a Division Bench by the order, dated 12.5.97. In pursuance of the direction of the Court, the State Government took a decision on the application of said opposite party that there existed no reasonable cause to get the case investigated by the C.B.C.I.D. and the Court took the view that since the investigation has already been completed and the charge-sheet submitted, nothing remained to be investigated. With these observations the writ petition was dismissed. The said Respondents then made a further effort to get the investigation made through C.B.C.I.D. by moving an application u/s 482, Code of Criminal Procedure which was registered as Criminal Misc. Application No. 4446 of 1997. The said application came up for hearing before Hon''ble R.N. Ray, J. and it was submitted on behalf of the opposite parties that if C.B.C.I.D. submitted a final report then the applicants could be precluded from getting the benefit because the local police was biased and by filing charge-sheet the defence of the applicant would be prejudiced. The Hon''ble Judge disposed of the said application by passing the following order:

In the circumstances, this petition is finally disposed of with a direction that the C.B.C.I.D. may file charge-sheet within 4 months or its final report as the case may be, then the Court below is to act upon according to law and till that period of 4 months further proceeding in the above case shall remain stayed and the applicants may not be arrested in connection with the above case but they must be available to the I.O. concerned for interrogation.

Thereafter this Court by its order dated 1.9.97 modified the earlier order dated 8.8.97 in the following terms:

Illness slip has been filed on behalf of the learned Counsel for the applicant. It has been submitted by the learned Counsel for the opposite party that upon mis-statement of the facts and concealment of facts, Petitioner managed to get the orders as no C.B.C.I.D. investigation is pending.

Let it be listed in the next supplementary cause list. In the meantime, the earlier order stands modified to the extent that, if no investigation is pending with C.B.C.I.D., then the restrictions regarding the arrest shall be deemed to be withdrawn and if the investigating agencies consider fit and proper, they may arrest the applicants and produce before the learned Court below according to law.

Let a copy of this order be sent down to the learned Court below at once for information.

In the meantime one of the accused Naseem Ahmad Khan applied for bail before this Court which was registered as Criminal Misc. Bail Application No. 11953 of 1997 and the same was rejected by me by the order dated 1.9.97. Since opposite party Nos. 2 and 3 had neither been arrested nor had appeared before the Court below their trial was separated and the trial court proceeded with the trial of the remaining accused. On the transfer application moved by the complainant, further proceedings of the trial were stayed by this Court by the order 1.1.98. It is also relevant to mention here that the C.B.C.I.D. in the meantime submitted charge-sheet before the trial court on 14.9.98 against all the accused persons. It further transpires that Ashok Kumar Singh Chandel, opposite party No. 2 again filed writ petition No. 2377 (MD)/98 before the Lucknow Bench of this Court with the prayer to issue a writ of mandamus directing the Respondents not to arrest him in the case. However, the writ petition was got dismissed as not pressed. Opposite party Nos. 2 & 3 then moved another application u/s 482, Code of Criminal Procedure (Crl. Misc. Application No. 642 of 1998) before the Lucknow Bench which came after hearing before Hon''ble I.M. Quddusi, J. The following interim order was passed on 13.10.98:

Heard the learned Counsel for the applicants and the learned Additional Government Advocate.

Learned Additional Government Advocate prays for and is granted two weeks time for filing counter-affidavit. Learned Counsel for the applicants has pointed out that the order dated 21.3.97 passed by the Division Bench at Lucknow in Writ Petition No. 1049 (MB) of 1997 in the matter of the Petitioner in which it was directed that the Petitioner shall not be arrested in case Crime No. 33 of 1997 under Sections 147, 148, 149, 302, 34, 395, I.P.C. However, it appears that the matter has been directed to be investigated by the C.B.C.I.D. vide Government Order, dated 10th July, 1998 and in pursuance thereof C.B.C.I.D. is making investigation in respect of the Petitioner No. 1 only. The Code of Criminal Procedure does not provide that when investigation of a case is made the same may be made only in respect of one person. It may be that there may be other culprits and they may be shielded in case the whole case is not investigated. In view of this Respondent No. 2, i.e. Additional Director General of Police C.B.C.I.D. is directed to get the aforesaid case crime investigated as a whole and not in respect of a particular person. Until further orders of this Court the Petitioners shall not be arrested in pursuance of the investigation made by the civil police and till the investigation is made by the C.B.C.I.D. as directed above.

However, it will be open for the Petitioners to surrender and move an application for bail. Learned Counsel has submitted that in the matter of Ms. Mayawati, the Hon''ble Supreme Court has directed to move application for bail and in that case the same was to be considered by the Court and in case it was rejected she was allowed time to move application in the higher court and for a specified period it was directed that the applicant (Ms. Mayawati) will not be arrested. Learned Counsel claims parity with that order on the ground that the order passed by the Hon''ble Supreme Court is the law of the land. He has also submitted that the applicant No. 1 is political person being Ex. M.L.A. for two terms. Considering the facts and circumstances of the case and submissions made by the learned Counsel, I am of the view that the Hon''ble Supreme Court has wide powers and can pass any orders but in every case the orders cannot be followed as it is the exclusive jurisdiction of the Hon''ble Supreme Court to make orders. However, in the facts and circumstances of the present case only this much is provided that in case the Petitioners surrender and move application for bail in the aforesaid case crime the same shall be considered and disposed of the same day. List this case after two weeks.

After obtaining the aforesaid ex parte order, the Respondent Nos. 2 and 3 surrendered before the Court on 23.6.98 and moved their application for bail which was allowed by the Court below on the same day and the opposite parties were granted bail which is sought to be cancelled by means of this application.

Cancellation of bail has been sought mainly on the ground that the Court below while allowing bail to the opposite party Nos. 2 and 3 did not consider various orders passed earlier by this Court on the petitions filed on behalf of the contesting opposite parties nor the gravity of the case wherein five persons were killed and five others seriously injured was considered and bail has been granted in an arbitrary manner on untenable grounds without affording reasonable opportunity of hearing to the applicant.

Notices were issued to opposite party Nos. 2 & 3 who have put in appearance and have filed counter-affidavit wherein allegations made in the application have been denied and the order granting bail is being defended on the ground that the same has been passed after consideration of entire facts and circumstances of the case.

I have heard learned Counsel for the applicant, learned A.G.A. and learned Counsel for the opposite party Nos. 2 & 3 at length and have also perused the record.

In order to appreciate the rival contentions of the parties'' counsel it may be relevant to quote the last portion of the order of the Sessions Judge whereby the bail has been allowed to opposite party Nos. 2 & 3 which runs as under:

Keeping in view the letter and spirit of order dated 13.10.98 of the Hon''ble High Court and the facts that Petitioner No. 1 is a political leader and M.L.A./and Advocate and Petitioner No. 2 his driver and the C.B.C.I.D. has not yet started its investigation in compliance of High Court order dated 13.10.98 and that S.P. Hamirpur is alleged to have personal enmity with Sri Chandel. Ex. M.L.A. and that without commenting on merits of the case and without any prejudice to trial, I, in fitness of situation, am inclined to grant bail to Sri Chandel and his driver Rukku and specially in situation that the shadow/gunner Ram Balak Verma of Chandel was discharged u/s 169, Code of Criminal Procedure and a final report was submitted against him showing a shadow of doubt on the presence of Sri Chandel on the occurrence.

Let accused Petitioners Sri Ashok Singh Chandel and his driver Sri Rukku be released on bail in Crime No. 33/97. under Sections 147, 148, 149, 307, 302 and 395, I.P.C, P.S. Kotwali on executing a P.B. of rupees one lac and four sureties of rupees 25,000 each.

By another order learned Sessions judge also allowed bail to the aforesaid opposite parties in Crime No. 33/97 u/s 30A of the Arms Act.

Learned Counsel for the applicant/complainant contended before this Court that without having any regard to the gravity of the offence and going into the facts and circumstances of the case, the Court below has granted bail to the opposite parties without affording reasonable opportunity of being heard by misinterpreting the order of this Court dated 13.10.98. On the other hand learned Counsel for the opposite parties vehemently argued that there are no sufficient grounds for cancellation of bail especially in the absence of any allegation of misuse of the same. It was vehemently argued by learned Counsel for the opposite parties that while hearing an application for cancellation of bail this Court does not act as a Court of appeal or revision for examining the correctness or otherwise of the order of bail passed by the Court below. It was submitted that no extraordinary or compelling circumstances appeared on the record which may necessitate cancellation of bail. Reliance has been placed on a number of decisions of the Apex Court in support of the argument that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail. It is true that rejection of bail when bail is applied for is one thing and cancellation of bail already granted is quite another and it is easier to reject the bail application than to cancel the bail granted to a person accused of non-bailable offence. Relying upon the decision in Bakhtawar Singh v. V. Arun 1999 (1) JIC 413 (All) : 1998 BC 767, it was argued by the learned Counsel for the opposite parties that bail cannot be cancelled simply on the ground that bail should not have been granted by the Court below or the merits of the case did not warrant the grant of bail.

It is well-established law that bail once granted to an accused can normally be cancelled only on the ground of its misuse, but bail can also be cancelled if the same has been allowed against well-established principles of law governing grant of bail, which will include the case where bail has been allowed without affording reasonable opportunity of hearing to the other side.

It has next to be seen whether in the present case bail has been allowed to the opposite parties against well-established principles of law and in an arbitrary manner. A bare perusal of the order in question would show that the learned Sessions judge was greatly influenced by the interim order of this Court, dated 13.10.98 passed in Criminal Misc. Application No. 642 of 1998 which has been reproduced in the earlier part of this order. It was on an application moved by the opposite party Nos. 2 & 3 u/s 482, Code of Criminal Procedure that this Court passed the order that in case the Petitioners surrender and move an application for bail, the same shall be considered and disposed of on the same day and by the same order, it was further provided that until further orders the Petitioners shall not be arrested in pursuance of the investigation made by the civil police and till the investigation is made by the C.B.C.I.D. Sri Murli Dhar Mishra learned Counsel for the applicant argued that this Court by an earlier order dated 12.5.97 passed in Writ Petition No. 1049 (MB) of 1997 had already concluded that since investigation by local police has already been completed and charge-sheet has been filed, nothing remained to be investigated. In the said order, their Lordships observed:

By means of this writ petition, the Petitioner has prayed for the issuance of a writ of mandamus commanding the Respondents to direct the investigation of case Crime No. 33/97 P.S. Kotwali, District Hamirpur by some fair agency including C.B.C.I.D., or C.B.I. On 14.3.97, this Court directed the standing counsel to seek instructions. The case was directed to be listed on 18.4.97 to show cause as to why application moved by the Petitioner had not been disposed of, but if it had been disposed of the copy of the order be produced before this Court on the next date.

On 21.3.97, the Court directed that the Respondents opposite party No. 1 shall decide the application of the Petitioner dated 10.3.97, within a period of ten days from the date a certified copy of the order would be produced along with the representation, before him. It was also directed that the opposite parties will pass speaking order giving reasons.

We have looked into the impugned order passed by the Joint Secretary to the State Government which indicated that the State Government after consideration of all relevant material on record took a decision that there existed no reasonable cause to get the case investigated by the C.B.C.I.D. This is only the communication of the order. We have seen the original record wherein the Joint Secretary submitted a lengthy note indicating the reasons for not referring the matter to the C.B.C.I.D. which was approved and counter-signed by the Joint Secretary as well as the Chief Secretary and even subsequent to this matter was placed before the Chief Minister who also approved the action.

It has been submitted by the learned standing counsel appearing on behalf of the State that the investigation has already been completed and the charge-sheet has already been filed. The Court had also taken the cognizance of the matter.

As the investigation has been completed and the charge-sheet has already been submitted, nothing remains to be investigated. Hence, the writ petition is misconceived and it is accordingly, dismissed.

Sri Mishra vehemently argued that after the said order no further direction could be issued for investigation by the C.B.C.I.D. It was further submitted by him that no direction could also legally be issued staying the arrest of the Petitioner during the course of the investigation as per the Full Bench decision of this Court in the case of Ram Lal Yadav 1989 JIC 1 77 (All)(FD) nor a direction to hear the bail application on the same day was legally permissible in view of another Full Bench decision of this Court in the case of Dr. Vinod Narayan v. State of U.P. 1995 JIC 433 (All)(FB) : 1995 UP CR 208. On other hand Sri Deewan, learned Counsel appearing for the opposite party Nos. 2 and 3 contended that the directions contained in the order dated 13.10.98 could not be overlooked or avoided by the Court below and the learned Sessions Judge was bound to follow them.

There can be no dispute that there is a direct authority of Full Bench of this Court in Ram Lai Yadav''s case that in an application moved u/s 482, Code of Criminal Procedure during the pendency of investigation, this Court has no inherent power to stay arrest of an accused and similarly in the case of Dr. Vinod Narayan (supra), it was held that the Court cannot fix a time schedule for the hearing and disposal of the bail applications. But in the present case, since such directions had been issued by this Court in the order dated 13.10.98. the learned Sessions judge was bound to take up the bail application for hearing on the same day. However I find that the said order has been wrongly interpreted and misconstrued by the Court below. This Court never meant nor had made any observation that the opposite parties were to be granted bail on the same day. It simply directed the Courts below to consider the bail application of the said opposite parties on the same day, which never meant or could be construed to mean that the bail application was to be disposed of on the same day even without giving an opportunity of hearing to the State or the complainant or that the provisions of Section 439, Code of Criminal Procedure were to be given or go by. The opportunity envisaged u/s 439, Code of Criminal Procedure should be real and reasonable. In the instant case the bail application moved on behalf of the opposite parties contained certain facts which required specific instructions to be obtained by the State and without giving time to meet those allegations, it could not be said that the State and the complainant had been afforded reasonable opportunity. The order of this Court never meant that the bail application was to be disposed of in a hurried and hasty manner without giving a reasonable opportunity to the State or the complainant, especially in a case like the present one which involved murder of five persons in an incident occurring in market. The order of this Court has to be interpreted reasonably that the bail application was to be taken up on the same day and disposed of according to law. The expression "according to law" is implicit in the said order. Even the circular letters issued by this Court from time to time also required a reasonable time to be given to the State counsel to oppose bail application moved before Sessions Court. Mere service of copy of the bail application on the D G.C. is not a sufficient compliance of the requirement of Section 439, Code of Criminal Procedure as the object of the aforesaid provision is to give a reasonable time to the State to oppose the prayer for bail. In the present case the facts and circumstances required giving of time to the State to place before the Court material in opposition to the prayer for bail made on behalf of opposite party Nos. 2 & 3. It may be relevant to mention here that when the bail application was moved by the opposite party Nos. 2 & 3 before the Court below on the same day an application was moved from the side of the applicant-complainant through counsel to give him a reasonable time to file counter-affidavit so that he could bring on record the criminal history of opposite party Nos. 2 & 3 and also other relevant facts but the same was rejected by the Courts below, perhaps on misinterpretation of the order of this Court. When time was being sought to place relevant material on record (sic) in opposition to the prayer of bail, the learned Sessions Judge should have adjourned hearing and while adjourning the hearing could have directed the opposite parties to present themselves on the adjourned date of hearing by releasing them on personal bond but he was not at all justified in allowing the bail application on the same day without affording a reasonable opportunity of hearing to the State and the complainant. It is further clear from the order of the Sessions Judge that he did not enter into the merits of the case while passing the order in question. While considering an application for bail, the Court may have regard to the status of the accused but the gravity of the offence and the facts and circumstances of the particular case also cannot be ignored from consideration. The order in question does not indicate that the learned Sessions Judge applied his mind to the facts and circumstances of the case while granting bail to opposite party Nos. 2 and 3.

After giving my thoughtful consideration to the entire facts and circumstances of the case, I find that the bail has been allowed to opposite party Nos. 2 and 3 in an arbitrary manner on untenable grounds without giving reasonable opportunity of hearing of the State and complainant. Bail granted to opposite party Nos. 2 and 3 is, therefore, cancelled and the learned Sessions Judge is directed to decide the application of bail of opposite party Nos. 2 and 3 afresh in accordance with law after giving a reasonable opportunity of hearing to the State and the complainant.

The application is accordingly allowed.