Sham Lal vs State of Punjab

S.S. Sudhalkar, J.

This application is made by Sham Lal son of Rura Ram, challenging the order of grant of bail to respondents No. 2 to 4 by learned Additional Sessions Judge, Faridkot Shri K.S. Uppal in connection with F.I.R. No. 37 dated 21.5.1996, under Sections 406, 498A and 304B of the Indian Penal Code. The F.I.R. was registered on the statement of the petitioner before the police. Respondents No. 2 and 3 had filed the bail application in the Court of Sessions which was dismissed by Shri R.C. Sharma, the learned Additional Sessions Judge, Faridkot on July 6, 1996. Another petition for bail filed by respondents No. 2, 3 and 4 being bail application No. 142/2.8.1996 was allowed by Shri K.S. Uppal, the learned Additional Sessions Judge, Faridkot on August 12, 1996. The petitioner has filed this application for cancellation of bail on the following grounds :

i) The second bail application did not reveal any additional ground for bail and no substantial change in the circumstances was there for grant of bail application when similar prayer was rejected three weeks earlier.

(ii) Second bail application should have been listed before the same Additional Sessions Judge who had dismissed the earlier bail application.

(iii) There were specific allegations against respondents No. 2 and 3 that they caught hold of Anshu Bala (deceased) by legs and arms so that she might not run away after catching fire and hence respondent No. 2 received burn injuries on his hands. Therefore, bail should not have been granted.

(iv) That the learned Additional Sessions Judge Shri K.S. Uppal granted bail to Rajni Bala and Kiran Bala (coaccused) thinking that they were minor girls and by taking the help of earlier judgment, he has granted bail to the prime accused.

(v) The allegation against the private respondents is of a very heinous crime.

(vi) After obtaining bail, the private respondents are not desisting from hampering the investigation and trying to win over the prosecution witnesses :

(a) that on 28.8.1996, respondent No. 2 tried to win over the prosecution witness Jagdish Kumar son of Gopi Ram by offering money to him and when he refused to oblige him, he was threatened of dire consequences.

(b) On 2.9.1996, all the private respondents met the petitioner outside the Court Room and respondent No. 2 asked him to withdraw the case and threatened that if the case is not withdrawn then the whole family will be liquidated. The petitioner thereafter lodged a report in Police Station with D.S.P. Gidderbaha.

I have heard the learned counsel for the petitioner, the learned A.A.G. for the State and the learned Counsel for the private respondents.

Points No. 1 and 2.

It is true that two of the private respondents had filed the bail application before the learned Additional Sessions Judge Shri R.C. Sharma, which was dismissed on July 6, 1996 and the bail application of the private respondents including the two earlier bail application was granted by Shri K.S. Uppal, the learned Additional Sessions Judge, Faridkot on 12th August, 1996 i.e. within a period of hardly one month after the passing of the previous order. I agree with the submission of the learned counsel for the petitioner that the bail application should have been put up before the same Additional Sessions Judge who rejected the bail application earlier. However, in this application for cancellation of bail, the question is what will be the effect if the bail application is not decided by the same Additional Sessions Judge. The propriety demands that subsequent bail application should be decided by the same judge. However, deciding of the bail application by the different Judge cannot be termed as illegal. From the papers on record, it is not shown to me that the learned Additional Sessions Judge Shri K.S. Uppal was made aware of the fact by any party that earlier bail application was rejected. Hence, on both these counts the bail cannot be cancelled.

Points No. 3 and 4 :

The learned Additional Sessions Judge has considered the fact that two statements of the deceased were on record (i) dated 21.4.1996 made before Shri A.S. Virk, J.M.I.C., Bathinda; and (ii) dated 7.5.1996 made before Shri Barinder Singh, J.M.I.C., Bathinda. In the first statement, she has stated that she caught fire accidentally when she lighted the kerosene stove and her husband got burn injuries when he tried to put off the fire. In the second statement, she has stated that her hands and legs were caught hold by private respondents and nonapplicant and she was put on fire. The learned Additional Sessions Judge Shri K.S. Uppal has also considered that the statement of the complainant was recorded after one month of the incident. It is, of course, the say of the petitioner that the police did not take action promptly, but the fact is that the F.I.R. was registered on 21.5.1996 and the incident had taken place on 21.4.1996. The statement before the J.M.I.C. Shri A.S. Virk was dated 21.4.1996 while the statement before Shri Barinder Singh, J.M.I.C. is dated 7.5.1996.

Point No. 5 :

Going through the judgment of Shri K.S. Uppal, it is found that he has relied on other grounds also while granting the bail. The allegations, if proved, cannot be said to be not heinous. However, if bail is granted by a competent Court considering the nature of allegation and prima facie evidence, if the reasons are not perverse or against the record, bail cannot be cancelled. In view of the principles laid down by the apex Court in the case of Aslam Babalal Desai v. State of Maharashtra, 1993(1) Recent C.R. 600 , the various grounds on which the bail can be cancelled are dealt with by the apex Court. They are as under :

(i) the accused misuses his liberty by indulging in similar criminal activity;

(ii) interferes with the course of investigation;

(iii) attempts to tamper with evidence of witnesses;

(iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation;

(v) there is likelihood of his fleeing to another country;

(vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency;

(vii) attempts to place himself beyond the reach of his surety;

of course it is held that these grounds are illustrative and not exhaustive.":

Point No. 6 :

This then takes me to the question whether the bail should be cancelled on the allegations of the alleged threats. The affidavit of witness Jagdish Kumar is at Annexure P4. In the affidavit, he has mentioned that respondent No. 2 had told him that he will give him money if he did not appear as a witness against him. However, he told him that he believes in God and will speak truth in the Court although the truth may be against anybody. Thereafter, respondent No. 2 and the persons accompanying him threatened the witness that if he did not agree, they would liquidate him. The said affidavit is dated 3.9.1996 and it is relating to the alleged incident of 29.8.1996. The affidavit is silent whether the abovesaid witness had informed the complainant about the incident during the intervening period.

Then there is a letter dated 2.9.1996 written by the petitioner to the D.S.P., Gidderbaha which is at Annexure P5. It is mentioned in the letter that on that date when he had gone to Courts at Gidderbaha to enquire about the case, respondent No. 2 threatened him that earlier they had burnt his daughter and if he did not withdraw the case within a month, they will murder his whole family. The present petition is dated 16.9.1996, accompanied by another affidavit of the petitioner. In para 18 of the affidavit, the petitioner mentions about respondent No. 2 trying to win over the prosecution witness Jagdish Kumar but it is not mentioned by the petitioner as to when Jagdish Kumar told him about the incident. However, it will be interesting to note that the State has not come with the prayer for cancellation of bail. Therefore, bare allegations without slightest support cannot be made the basis for cancellation of bail.

In the case of Dolat Ram and others v. State of Haryana, 1995(1) S.C.C. 349, it has been held that the rejection of bail in nonbailable offence and cancellation of bail already granted must be considered and dealt with on different basis. In the case of Ajaib Singh v. Bimla Devi and another, 1996(3) Recent C.R. 180 , it has been held that very congent and overwhelming circumstances are necessary for cancellation of bail.

In the present case, the bail is already granted. It is not shown whether the act of learned Additional Sessions Judge Shri K.S. Uppal was mala fide or that he was knowing about the fact that the bail application was rejected earlier. He has considered the grounds for granting bail and leaving aside the question whether the bail could or could not have been granted by the Additional Sessions Judge, once it has been granted, Courts will be slow in cancelling the bail unless overwhelming circumstances are shown for the same.

In view of the above reasons, I do not find it proper to cancel the bail granted to the private respondents. This petition is, therefore, dismissed.