Satbir Kataria vs State of Haryana

Sat Pal, J.

This petition has been filed by the petitioner under Section 438 of the Code of Criminal Procedure (in short, the Code) seeking anticipatory bail in the case F.I.R. No. 90 dated 12th March, 1995, Police Station Sohna, District Gurgaon, under Sections 302/120B/34, Indian Penal Code.

Before dealing with the facts of the case it will be relevant to mention here that the petitioner had earlier filed three petitions bearing Cr.Misc. No. 4725M of 1995, Cr. Misc. No. 5719M of 1995 and Cr. Misc. No. 9834M of 1995, seeking the same relief and all the petitions were dismissed. Cr.Misc. No. 4725M of 1995 was dismissed by me on 21st March, 1995, and the following orders were passed :

"The learned counsel for the petitioner submits that no case under Section 120B of the Indian Penal Code is made out as there was no conspiracy involving the petitioner. He further submits that the petitioner has been named in the FIR by Dharminder, who has got enmity with the petitioner. At this stage, I am not inclined to go into the facts regarding enmity. However, from the FIR I find that it has been mentioned therein :

"All these bad elements along with their weapons have been called from outside by P.C. Saini and Satbir Kataria."

In view of these allegations, no case is made out for grant of bail at this stage.

Dismissed."

Again Cr. Misc. No. 5719 of 1995 was dismissed by me on 5th April, 1995, and the order passed on that day reads as follows :

"In this case, the petition for grant of anticipatory bail, Cr.Misc. No. 4725M of 1995 was rejected by me on 21st March, 1995. The said order was passed after going through the contents of the FIR. In the FIR, it has been stated that "all these bad elements along with their weapons have been called from outside by P.C. Saini and Satbir Kataria". In view of this, no case is made out for grant of anticipatory bail. Dismissed."

The third application, Cr. Misc. No. 9834M of 1995 was dismissed on 13th June, 1994 by H.S. Bedi, J. and the following orders were passed :

"Present : None.

Two applications for anticipatory bail have already been declined. Dismissed."

From the orders mentioned hereinabove, it is evident that the first two orders, dated 21st March, 1995 and 5th April, 1995, contained reasons for rejecting the applications for anticipatory bail. Though none was present on behalf of the petitioner on 13th June, 1994, when the orders rejecting the third application were passed, but even this order contained reasons that two applications for anticipatory bail had already been declined. It may also be pointed out here that when the third application for grant of anticipatory bail was rejected on 13th June1995, by H.S. Bedi, J., the fact regarding grant of anticipatory bail to coaccused Prem Singh Saini had already been brought to the notice of the learned Judge as is evident from the order passed on 6th June, 1995, in that case.

Mr. Baghai, learned counsel appearing on behalf of the petitioner submitted that though the present petition for grant of anticipatory bail is fourth one, but an order refusing the application for bail does not necessarily preclude another one at a later occasion giving more material. In support of this submission, he placed reliance on a judgment of the Supreme Court in Babu Singh v. State of U.P., AIR 1978 S.C. 527.

He further submitted that since after the rejection of first and second applications, filed by the petitioner for grant of anticipatory bail, coaccused Prem Singh Saini against whom the allegations are similar to those against the petitioner, was granted anticipatory bail on 21st April, 1995 by Hon''ble Mr. Justice S.C. Datta in Cr. Misc. No. 4957M of 1995, the petitioner was also entitled to the concession of ancipatory bail. In support of this submission, he placed reliance on a judgment rendered by a Division Bench of Allahabad High Court in the case Nanha v. State of UP, 1993 Criminal Law Journal 938 and a judgment of Delhi High Court in Binoy Jacob v. CBI, 1993 Criminal Law Journal 1293.

Learned counsel also submitted that the power to grant anticipatory bail was not circumscribed by limitations imposed in Section 437(1) of the Code and a person accused of having committed murder could also be granted concession of anticipatory bail under Section 438 of the Code. In support of his submission, he placed reliance on a judgment of the Supreme Court in Gurbux Singh v. State of Punjab, AIR 1980 SC 1632; a judgment rendered by a Division Bench of Gujarat High Court in Baldev Bhai Natwarlal Barot v. State of Gujarat, 1982 Criminal Law Journal 508; a judgment of this Court in Ram Singh v. State of Punjab, 1984 C.C. Cases 206; and a judgment rendered by a Division Bench of Karnataka High Court in I.Y. Chandaparappa v. State of Karnataka, 1989 Criminal Law Journal 405. He further submitted that the petitioner should not be denied the concession of anticipatory bail simply because his name had been mentioned in the FIR. In support of this submission, he placed reliance on a judgment rendered by a Division Bench of Calcutta High Court in Re. Purna Chandra Chatterji, 1975 Criminal Law Journal 1815. He also submitted that this Court in Rakesh Pal Puri v. State of Punjab, 1974(2) C.L.R. 502, had granted anticipatory bail to a person who was alleged to have committed an offence under the provisions of the Official Secrets Act, the Opium Act and the Arms Act.

Lastly, the counsel contended that in the present case, the investigation was complete, the challan has already been filed; weapon had been recovered; coaccused P.S. Saini has been granted bail by this Court and in view of these facts, the petitioner should be granted anticipatory bail.

Mr. Dewan, learned AAG, on instructions from the Investigating Officer, submitted that the petitioner was wanted for interrogation and in spite of the fact that his three applications for grant of anticipatory bail had been rejected by this Court, he was evading arrest. He further submitted that the Investigating Officer had visited the petitioner''s residence on 11th May, 1995; 25th May, 1995; 27th May, 1995; 6th June, 1995; and 17th June, 1995, but the petitioner was found missing on all these occasions and in this connection, the Investigating Officer had visited the residence of the sister of the petitioner on 19th July, 1995, but the petitioner was not found there also. He also submitted that warrant of arrest had already been issued by the Ilaqa Magistrate, Gurgaon, on Ist June, 1995 and an application has also been filed before the Ilaqa Magistrate on 23rd june, 1995, to declare the petitioner a proclaimed offender. He further submitted that the main accused, Ashok, Angrez alia Tiger, who were arrested in this case, have not been granted bail. He, therefore, contended that the present application filed by the petitioner should also be dismissed.

I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the record. In the case of Gurbux Singh Sibia (supra), it was observed by the Supreme Court that some of the considerations which the Court has to keep in mind while deciding an application for anticipatory bail are the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant''s presence not being secured at the trial, a reasonable apprehension that the witnesses will be tampered with and the larger interest of the public or the State. In a subsequent judgment in the case of Pokar Ram v. State of Rajasthan, AIR 1985 SC 969 it was observed by the Supreme Court that "anticipatory bail to some extent intrudes in the sphere of investigation of crime and the Court must be cautious and circumspect in exercising such power of a discretionary nature." In the present case, as per the allegations made in the FIR, the petitioner and one P.S. Saini had come to the hotel of the deceased Chander Parkash in their Maruti van and had told the deceased that certain persons had been brought by them to confirm the possession of Peer Bukhara and they were to be given food. It is also alleged that the said persons refused to make the payment for the food and when the deceased insisted that unless the payment was made, he will not supply meals to some more persons, one of them took out a country made pistol and on the saying of two others, fired a shot on the chest of the deceased which resulted in his death. It is further alleged that all these persons are bad elements and along with their weapons they had been called from outside by the petitioner and P.S. Saini. Those allegations clearly show the nature and seriousness of the offence alleged to have been committed by the petitioner and others. Keeping in view the aforesaid considerations, the first application Cr.Misc. No. 4725M of 1995 was dismissed by me on 21st March, 1995 with a reasoned order. Though there was no change in the circumstances of the case, the petitioner filed another application for grant of anticipatory bail bearing Cr. Misc. No. 5719M of 1995 which was again dismissed by me on 5th April, 1995 and the said order also contained the reasons for rejecting the bail.

Here it will be relevant to refer to a judgment of the Supreme Court in Kiran Devi v. State of Rajasthan, 1987 (Supplementary) S.C.C. 549. In this case, an order passed by the Rajasthan High Court granting anticipatory bail to an accused in a murder case was set aside by the Supreme Court. The relevant portion from the order passed by the Supreme court is reproduced herein below :

"We are of the opinion that anticipatory bail should not have been granted in the murder case when the investigation was still incomplete. The proper course to adopt was to leave it to the trial Court to do the needful if and when the person concerned was arrested in the light of the record available at the point of time. The order passed by the High Court is, therefore, set aside."

Thereafter the petitioner instead of surrendering before the police, filed another application for grant of anticipatory bail bearing Cr. Misc. No. 9834M of 1995 on 1st June, 1995. In this application, inter alia, it was stated that Prem Singh Saini coaccused of the petitioner had also filed a petition bearing Cr.Misc. No. 4957M of 1995 for grant of anticipatory bail and his petition has been allowed by Hon''ble Mr. Justice S.C. Datta vide order, dated 21st April, 1995. The said order reads as under :

"Heard learned Counsel for the petitioner as well as District Attorney for the respondent and perused the papers. In the event of arrest, the petitioner may be released on bail, he must cooperate with the Investigating Officer and would not tamper with the evidence. He must surrender before the learned Chief Judicial Magistrate, Gurgaon, within seven days. Copy of the order be given dasti on payment."

This application was, however, again rejected by H.S. Bedi, J. on 13th June, 1995."

Now the present application (which is 4th one) has been filed by the petitioner for grant of anticipatory bail. The main point argued by the learned counsel for the petitioner is that since after the rejection of the first two applications, coaccused P.S. Saini who has been assigned the similar role as that of the petitioner, had been granted anticipatory bail on 21st April, 1995, petitioner was also entitled to the concession of anticipatory bail. I, however, do not find any substance in this contention as the fact regarding the grant of bail to coaccused had duly been mentioned in Para 6 of the third application for grant of anticipatory bail and this fact was duly noticed by H.S. Bedi, J. in the order dated 6th June, 1995, but in spite of that, third application for anticipatory bail was rejected by the said Hon''ble Judge. Besides, the case of P.S. Saini is distinguishable from the case of the petitioner. Firstly, no allegation was made in the application filed by P.S. Saini that there was any enmity between him and the deceased or his son, but in the case of the petitioner, the learned counsel for the petitioner on 21st of March, 1995, during the course of his arguments, had submitted that the petitioner had been named in the F.I.R. by Dharaminder because the said Dharaminder had got enmity with the petitioner. It may be pointed out that Dharaminder is the son of the deceased and the FIR was lodged by him. Again in Para 1 of the third application, bearing Criminal Misc. No. 9834M of 1995, filed by the petitioner, it has been stated "That the petitioner has been falsely implicated in the abovementioned case on account of personal enmity with Sh. Chander Parkash." As stated in the FIR, Chander Parkash is the deceased and it has been alleged in the FIR that the persons who had killed Chander Parkash were bad elements and they along with their weapons had been called from outside by the petitioner, Satbir Kataria. Since it is the case of the petitioner himself that the deceased and his son had enmity with the petitioner and it is alleged in the FIR that the bad elements along with their weapons had been called from outside by the petitioner, and the deceased had been killed by the said bad elements, the question of granting the anticipatory bail does not arise.

Another point of distinction is that the petitioner had been evading arrest and the prosecution has even filed an application before the Ilaqa Magistrate on 23rd June, 1995, to declare the petitioner a proclaimed offender and as stated by the learned A.A.G., he is still wanted for interrogation. In this connection, reference may be made to Para 21 of the judgment in the case of Nanha (supra), (which has been relied upon by the learned counsel for the petitioner). In this paragraph, it has been stated that a Full Bench of the Allahabad High Court had laid down the law that the argument of parity alone would not be sufficient to enlarge an applicant on bail. Here reference may also be made to a judgment of the Supreme Court in The State v. Captain Jagjit Singh, AIR 1962 SC 253.

Keeping in view the law laid down by the apex Court and taking into consideration the serious nature of the offence alleged against the petitioner and the enmity between the petitioner and the deceased, I am of the opinion that the petitioner is not entitled to the concession of anticipatory bail.

For the reasons recorded herein above, I do not find any merit in this application, and the same is dismissed. It will, however, be open to the petitioner if and when he is arrested, to apply for bail to the appropriate Court which will decide the matter on the basis of the available records in accordance with law.