Shashi Kumar Gupta vs State of Haryana

V.S. Aggarwal, J.

Pardeep Kumar Gupta is the complainant. His two children Anurag and Sachin were missing. A report was made by him about his missing children. Petitioner Shashi Kumar Gupta is the brother of Pardeep Kumar Gupta. Initially a case was registered with respect to offences punishable under sections 364/386/511 Indian Penal Code. A Bench of this Court on 24.4.1992 had directed the investigation of the case by the Central Bureau of Investigation, Chandigarh. The petitioner was arrested and subsequently admitted to bail on 23.9.1992.

The Central Bureau of Investigation preferred a petition for cancellation of the bail, while the petitioner prayed for anticipatory bail because it was pointed out that Section 302 Indian Penal Code had also been added. Both the applications were dismissed by the Sessions Judge. However, in this Court in Crl. Misc. No. 8029M of 1994 on 26.8.1994 the prayer of the C.B.I. was allowed. The bail of the petitioner was cancelled. He is presently in custody.

Petitioner seeks bail primarily on the ground that no material has been collected against the petitioner. The evidence so collected is not reliable and in any case in the report submitted under section 173 of Code of Criminal Procedure, Section 302 I.P.C. has been deleted.

The C.B.I. opposes the prayer. It was pointed that investigation with respect to the offence punishable under Section 302 I.P.C. is still under way. A separate challan may well be filed. Otherwise also it is alleged that there is no ground to admit the petitioner to bail.

During the course of arguments, learned counsel for the petitioner vehemently urged that the concession of bail granted to the petitioner had never been abused and in any case the same was cancelled because Section 302, Indian Penal Code had also been added regarding which the challan has not been filed. I am afraid the said plea cannot be allowed to prevail. The orders passed in this Court on 26.8.1994 clearly show that while the concession of bail granted to the petitioner was withdrawn, at that time, it was not the sole ground that offence punishable under section 302, Indian Penal Code is also alleged to have been committed. It was concluded :

"As already noticed, when the petitioner was allowed bail, case had only been registered under sections 364, 386 and 511 of Indian Penal Code. At that time, no material had come into possession of C.B.I. that could have further warranted detention of the petitioner in judicial custody. It was in these circumstances that the petitioner was ordered to be released on bail. It was only when Sunil Kumar Gautam was arrested and in his statement under section 164, Cr.P.C. before the Special Magistrate, implicated the petitioner with heinous crime of abduction and killing of two children, aged 10 and 12 years, who at that time were studying in 5th and 4th classes respectively, C.B.I. was constrained to apply for cancellation of bail."

It was obvious from the aforesaid that attracting Section 302, Indian Penal Code was not the sole criteria or consideration for cancelling the bail. In fact, the concession was withdrawn taking into consideration the totality of the facts.

The consideration for grant of bail in nonbailable cases is not a matter of right. The question of grant of bail in such cases cannot be put in a steel jacket formula. The Court has to take an overall view. A balance has to be struck between two conflicting demands i.e. shielding the society from misadventures and presumption of innocence till he is found guilty. There cannot be inflexible rule governing a bail. Detailed examination of evidence and elaborate scrutiny has to be avoided while passing orders granting or refusing bail. Circumstances Which are peculiar to the accused a reasonable possibility of the presence of the accused not being secured at the trial, witnesses being tampered and the larger interest of the State and the society are some of the known considerations.

Reverting back to the facts of the present case it is obvious that two nephews of the petitioner are still not traced. It would not be appropriate to express any opinion regarding the statements recorded till date, but suffice to say that challan has been submitted in Court with respect of offences punishable under sections 364 and 386, Indian Penal Code, There was some property disputes between the petitioner and his brother. Cognizance can well be taken by the concerned Court to any other offence, but that fact cannot be prejudged at this stage. The gravity of offence, the totality of circumstances and material collected cannot be ignored.

The Court finds no reason to admit the petitioner to bail. The application accordingly is dismissed.