Shiv Kumar Gupta vs The State of Chhattisgarh and Another

L.C. Bhadoo, J.—Even though the bail was granted to the accused persons on different dates by the Additional Sessions Judge u/s 439 of the Code of Criminal Procedure. 1973 (for short the Code) but all these miscellaneous criminal cases are relating to the same incident, therefore, they are being disposed by this common order.

Injured Shiv Kumar Gupta has moved all these petitions u/s 439 (2) of the Code for cancellation of the bail granted to the accused persons. Misc. Criminal Case No. 1542 of 2002 has been filed for cancellation of bail granted to accused/non-applicant Ajay Arora by Mr. K. Das, Additional Sessions Judge, Manendragarh vide order dated 17/04/2002; Misc. Criminal Case No. 1565 of 2002 has been filed for cancellation of bail granted to accused/ non-applicants Surendra Sindwani and Harun Memon by the same Judge i.e. Mr. K. Das, Additional Sessions Judge, Manenedragarh vide order dated 19 04 2002; Misc. Criminal Case No. 1563 of 2002 has been filed for cancellation of bail granted to accused/non-applicant Harjeet Singh Chhabra by Mr. S.K. Patel, Additional Sessions Judge, Baikunthpur (Korea) vide order dated 23/ 04/2002 and Misc. Criminal Case No. 1564 of 2002 has been filed for cancellation of bail granted to accused/non-applicants Gurubakhsh Singh Chhabra, Jasbir Singh Raina alias Babloo, Gurjeet Singh Raina alias Tingu and Narendra Singh Raina alias Bunty also by Mr. S.K. Patel, Additional Sessions Judge, Baikunthpur (Korea) vide order dated 15/05/2002.

Non-applicants (i) Harjeet Singh Chhabra, (ii) Gurubakhsh Singh Chhabra, (iii) Jasbir Singh Raina alis Babloo, (iv) Gurjeet Singh Raina alias Tingu, (v) Narendra Singh Raina alias Bunty, (vi) Surendra Sindwani, (vii) Harun Memon and (viii) Ajay Arora are accused in Crime No. 164 of 2002 registered at Manendragarh Police Station for the offences punishable under Sections 147, 148, 149 and 307 of the Indian Penal Code and Sections 25 & 29 of the Arms Act. The incident took place on 03/04/2002 at about 11.15 P.M. at Hajari Chowk, Manendragarh. The case of the prosecution is that the accused persons, after forming unlawful assembly in furtherance of their common object to commit the murder of Shiv Kumar Gupta, had attacked him with the weapons namely firearms, gun, sword, katta etc. and in the incident Shiv Kumar Gupta received serious injuries including gun shot injury.

These petitions have been filed by complainant Shiv Kuamr Gupta on the ground that the accused/non-applicants have been granted bail to the utter surprise of every one on unjustified grounds within a very short period from the date of incident. Accused Ajay Arora has been admitted to bail on the ground that no injury was inflicted by him and trial of the case is likely to take sometime. The learned Additional Sessions Judge, Baikunthpur admitted to bail accused Harjeet Singh Chhabra on the ground that looking to the nature of offence and the fact that the other co-accused has been relased on bail, he deserved to be enlarged on bail, Accused Surendra Sindwani and Harun Memon have been admitted to bail on the ground that they were merely present along with the main accused Harjeet Singh at the place of the incident with clubs. Accused Gurubakhsh Singh Chhabra, Jasbir Singh Raina alias Babloo, Gurjeet Singh Raina alias Tingu, Narendra Singh Raina alias Bunty have been admitted to bail on the ground of parity as also on the ground that the trial of the case is likely to take time.

The law on the point of cancellation of bail has been laid down by Hon''ble the Apex Court in the following decisions:

(a) In the case of State (Delhi Administration) Vs. Sanjay Gandhi, has held that 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 non-bailable 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 by and large be 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.

(b) In the case of Aslam Babalal Desai Vs. State of Maharashtra, the Apex Court has held that the grounds for cancellation of bail under Sections 437(5) and 439(2) are identical, namely, bail granted u/s 437(1) or (2) 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) inteferes 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, etc. The Court said that these grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.

(c) In the case of Puran Vs. Rambilas and Another etc. etc., the Hon''ble Apex Court has observed that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. However, these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of the nature like bride burning and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the Society. Therefore, an arbitrary and wrong exercise of discretion by the trial Court has to be corrected. It is to be kept in mind that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has miscomputed himself or because of some new facts requiring such cancellation.

In the light of the above law laid down by Hon''ble the Apex Court in the matter of cancellation of bail u/s 439 (2) of the Code, now I proceed to examine the case of each and every accused for cancellation of the bail u/s 439(2) of the Code.

The case of the prosecution is that on 04.04.2002 at about 12.15 in the mid night the statement of injured Shiv Kumar Gupta was taken in the Hospital at Manendragarh where he had stated before Inspector S.L. Marawi that he is resident of Manendragarh and runs a betel shop in his house at Hazari Chowk in the name of Shiv Pan Thela, his brother Guddu also sits in the shop. The injured further stated that he gave Rs. 50,000/- to Harjeet Singh alias Teetu to construct a betel shop in the Chowk and told him to keep this money and construct the betel shop, he will give the remaining Rs. 2,00,000/ - later on after consultation with his family members. When Shiv Kumar Gupta consulted his family members, the proposal for construction of the betel shop was not accepted by them. Accordingly, Shiv Kumar Gupta informed Harjeet Singh that now he is not having any idea to purchase the land for the shop and asked him to return the money which Harjeet Singh had taken from him, but Harjeet Singh out rightly refused to repay the amount and on account of this, there was some dispute during the day. Later on, in the night at about 11.15 when he was standing near the shop after having meals, at that time in a D.I. jeep Harjeet Singh Chhabra, Harun Memon, Ajay Arora, Gurubakhsh Singh Chhabra, Lovely alias Surendra Sindwani, Banti, Jasbir Singh Raina & Tingu all the 8-10 people came. Harjeet Singh was carrying a 12 bore double barrel gun, Gurubakhsh Singh was armed with a revolver and also a sword and other people were armed with rod, Lathi & Danda. Harjeet Singh told Shiv Kumar Gupta that if he takes back the money from him, he will kill him then and there only and with the intention to commit his murder harjeet Singh fired at him with his gun by which he sustained gun shot injury on right side. Gurubakhsh Singh with his revolver fired and attacked him with sword also as a result of which he sustained injury on his head. Some vegetable venders have also sustained gun shot pellet injuries fired by Gurubakhsh Singh and Harjeet Singh. The other members of the team chased him and committed Maar Peet and on account of the injuries he fell down. Later on, he was brought to the Central Hospital. The case was registered under Sections 147, 148, 149 & 307 of the I.P.C. and Section 27 of the Arms Act. The investigation was in progress. Injured Shiv Kumar Gupta was admitted in the Central Hospital, Manendragarh and from there he got himself discharged on 9th April, 2002 at 10:00 a.m. and went to the Apollo Hospital, Delhi for treatment. The treatment slip shows that there were multiple injuries on the body of Shiv Kumar Gupta. One Lalman Rathore also received the gun shot injuries who was discharged on 5th April, 2002 from the S.E.C.L. Hospital. Similarly, one Kamlesh Kumar Vaishnav aged about 40 years also received multiple gun shot injuries. Soniya was also admitted in the S.E.C.L. Hospital who also received the gun injury. Other persons namely, Budhiya, Avinash Gupta, Ramesh Rathor & Bhagwan Das also received gun shot injuries. All the acgused were named by injured Shiv Kumar Gupta in the report. During the investigation, the accused persons were arrested.

Accused Ajay Arora moved the bail application on 15th April 200/-and vide order dated 17th April, 2002, the bail was granted to the accused applicant by the learned Additional Sessions Judge, Manendragarh Mr. K. Das on the ground that the allegation against the applicant is that although he was present with the main assailants with a Lathi but, there is no direct allegation that he assaulted the injured, he was arrested on 4th April, 2002, he is injudicial custody and the conclusion of the trial is likely to take time. Therefore, the learned Additional Sessions Judge released him on bail.

Accused Surendra Sedwani & Harun Memon moved the bail application on 17th April, 2002 before the same Additional Sessions Judge and on 19th of April 2002, the learned Additional Sessions Judge granted bail to them also. The only ground taken by the said two applicants was that co-accused Ajay Arora has already been released on bail, their case is not different from the case of Ajay Arora, and it is not written in the F.I.R. that they assaulted injured Shiv Kumar Gupta. The learned Additional Sessions Judge observed that the accused persons were arrested on 4th April, 2002, they are in judicial custody and the allegation against these persons is that they accompanied the main accused Harjeet Singh armed with Lathi and Danda, whereas the injured has received 12 bore gun injury. On the said grounds, the learned Additional Sessions Judge granted bail to these accused persons.

When the Additional Sessions Judge, Manendragarh Mr. K. Das was on leave on 22nd 23rd & 24th of April, 2002, the bail application was moved before the Additional Sessions Judge, Baikunthpur (Korea) on behalf of Harjeet Singh on 22nd April, 2002. On 23rd April, 2002, the learned Additional Sessions Judge granted bail after observing in Para 5 of the order that the injured was admitted in the S.E.C.L. Hospital from there on 9th April, 2002, he has been discharged and it has been found that there was a gun shot injury on the right side of his body and the parietal bone was fractured. The learned Additional Sessions Judge further observed that the accused is in custody since 04.04.2002, other accused persons have already been released on bail and looking to the nature of the offence and the fact that the trial is likely to take time, the accused deserved to be enlarged on bail. Therefore, he released the accused on bail with the conditions that he will not threaten the witnesses till the challan is filed, he will report at the Police Station on every Saturday in between 6 & 7 p.m. and he will furnishpersonal bond of Rs. 20,000/- and two sureties in the sum of Rs. 10,000/- each to the satisfaction of the concerned Magistrate. Similarly, the remaining accused persons including Gurubakhsh Singh moved the bail application before the Additional Sessions Judge, Baikunthpur (Korea) on 14th May,2002, when the regular Additional Sessions Judge Manendragarh was on leave and again the learned Additional Sessions Judge, Baikunthpur Mr. A.K. Patel granted bail to all the four remaining accused namely, Gurubakhsh Singh Chhabra, Jasbir Singh Raina alias Bablu, Gurjeet Singh Raina alias Tingu & Narendra Singh Raina alias Banti on the ground that the other accused persons have been released on bail, therefore, looking to the nature of the crime and the fact that the trial is likely to take time, these accused persons are also entitled to be released on bail. He, accordingly, released them on bail and imposed a condition that they will report the Police Station on every Saturday between 6 and 7 p.m.

I have heard the learned counsel for the parties.

Mr. Prafull Bharat, learned counsel appearing for the applicant argued that the accused persons have been granted bail, in such a serious offence in which injured Shiv Kumar Gupta received gun shot and sword injuries and had to take treatment at Apollo Hospital, Delhi. He further argued that looking to the serious nature of the sensational crime committed by the accused persons which rocked the city of Manendragarh, the bail was granted against the settled principles of law for granting bail in heinous crimes and the orders passed by the Courts below granting bail to the accused persons are not based on sound reasonings. Even otherwise the accused persons have not complied with the conditions imposed on them after their release on bail. The accused persons are very influential persons and the main accused is a liquor contractor. Therefore, the bail granted to the accused persons should be cancelled and they be sent to judicial custody.

Shri Kishore Bhaduri, learned counsel appearing for the accused persons, on the other hand, argued that the bail was granted to the accused persons on the merits of the case. The accused persons have not violated any condition. They might not have reported at the Police Station on each date fixed but they reported at the Police Station. Therefore, sufficient compliance of the bail orders has been made by the accused persons. Moreover, there are no allegations against the accused persons that they have created any panic, they have interfered with the investigation of the case, they have threatened the witnesses to turn hostile, or they have, in any way, misused the liberty granted to them. Therefore, on the settled principles for cancellation of bail, the applicant has not been able to make out a case for cancellation of bail granted to the accused persons. As such, the petitions filed by the applicant be rejected.

I have considered the rival contentions made by the learned counsel for the parties.

As far as the question of locus-standi of the complainant/applicant to move this application for cancellation of bail u/s 439 (2) of the Cr.P.C. is concerned it has not been challenged by the learned counsel for the accused/non-applicants. Even otherwise, as has been held by the Hon''ble Apex Court in the case of R. Rathinam Vs. State by DSP, District Crime Branch Madurai District, Madurai and Another, that in the matter of cancellation of bail the power can be exercised by the High Court suo motu- Hence any member of the public can maintain a petition before the High Court reminding it of the need to exercise its suo motu power in a particular case. Therefore, the complainant is entitled to file the application for cancellation of the bail.

The bail of Ajay Arora, Surendra Sedwani & Harun Memon was granted by the concerned Additional Sessiosn Judge and in their case among other grounds the main ground taken was that as per the F.I.R. these persons were merely present on the spot with the main accused, they were carrying only Lathi & Danda, there are no specific allegations against them that they assaulted with Lathi & Danda and it was main accused Harjeet Singh & Gurubakhsh Singh who have caused injuries to injured Shiv Kumar Gupta by gun shot and sword. Shiv Kumar Gupta received the gun shot injury. His parietal bone was fractured on account of the sword injury. Therefore, I do not find any ground to cancel the bail of the accused persons namely, Ajay Arora, Surendra Sedwani & Harun Memon after a lapse of the period of one year and three months. Similarly, as far as Jasbir Singh Raina alias Bablu, Gurjeet Singh Raina alias Tingu and Narendra Singh Raina alias Banti are concerned, their case is also on the same footing as that of Ajay Arora, Surendra Sedwani & Harun Memon. Against them also there are no allegations that they were carrying some fire arm or they caused the fatal injury. Therefore, these accused persons are also entitled to the same benefit which has been granted to Ajay Arora, Surendra Sedwani & Harun Memon. Therefore, their bail cannot be cancelled. As far as the question of their appearance before the Police Station as per the bail order is concerned, by and large they had complied with the direction, even though, it is true that they did not appear on each and every date before the Police Station on the given day scrupulously, but they have complied with the order by and large which reveals from the perusal of the attendance register of the accused persons maintained by the Police Station.

Now coming to the question of cancellation of bail granted to main accused Harjeet Singh & Gurubakhsh Singh, their cases are quite disturbing for the reason that the regular Additional Sessions Judge was on casual leave on 22nd, 23rd & 24th of April, 2002 and on 26th April 2002 he availed the restricted holiday. On 22nd April, 2002, the main accused moved the bail application before the Additional Sessions Judge, Baikunthpur, since the Additional Sessions Judge Manendragarh was on leave and on 23rd April, 2002. The learned Additional Sessions Judge, Baikunthpur granted the bail. The ground on which bail has been granted to these two accused persons is quite disturbing. The ground which has been mentioned in the bail order is that the other accused persons have been granted bail. In the F.I.R. there are clear cut allegations against accused Harjeet Singh that the fired the gun shot injury on Shiv Kumar Gupta which hit his right hand. Not only this, the other persons who were standing there also received the gun shot injuries whose names have been mentioned in the earlier part of this order. Accused Harjeet Singh was granted bail by Mr. A.K. Patel, the additional Sessions Judge, on the ground that other accused persons have already been released on bail whereas in the order itself it is mentioned that there were gun shot injuries and fracture of parietal bone on the body of injured Shiv Kumar Gupta. The learned Additional Sessions Judge granted bail to the accused by ignoring this part. In view of this and in view of the facts that the matter was still under investigation, the incident took place only 20 days back and the injured was still taking treatment in the hospital, the order of the learned Sessions Judge cannot be considered as exercise of judicial power based on the settled principle for granting the bail to the accused u/s 439 of the Cr.P.C. This shows that the bail was granted to these two persons ignoring material and evidence on record, by a perverse order. Keeping in view the way Shiv Kumar Gupta was attacked with fire arms and the main accused was granted bail in such a short period of time, that too on flimsy grounds this order definitely shocks the judicial conscious and also the conscious of peace loving people of Manendragarh. Other accused namely, Ajay Arora, Surendra Sedwani & Harun Memon were granted bail because the allegations against them were that they were members of the unlawful assembly, they were carrying only Lathi & Danda and there was no clear allegation against them that they caused any fatal injury. Whereas, against this accused/ applicant the allegation is that he first threatened the injured to murder him as the injured was asking the money back and immediately fired at him which hit on the right side of his body and other persons standing nearby also received gun shot injuries. Therefore, this bail order passed by Mr. A.K. Patel, the Additional Sessions Judge is wholly unjustified, illegal and perverse being contrary to the principles for granting the bail. Not only this, as has been mentioned in para 8 of the application for cancellation of bail, Harjeet Singh after releasing on bail went to the Bar to meet his Advocate and stated that

The case of other accused Gurubakhsh Singh Chhabra also falls on the same footing. He too assaulted Shiv Kumar Gupta with sword on the head and fired with his Katta. Therefore, granting bail to this accused on the ground that other accused persons have already been releasd on bail also amounts to misusing of the judicial process and the order is perverse. This bail was also granted by Mr. A.K. Patel, Additional Sessions Judge, Baikunthpur. The bail application was moved on 14th May, 2002 and the bail was granted on 15th May, 2002, when the regular Additional Sessions Judge Mr. K. Das was on leave. Therefore, these two accused persons deliberately, instead of applying for bail before the regular Additional Sessions Judge, have chosen a time when the Presiding Officer of the Court at Manendragarh was on leave and moved the bail application before the Additional Sessions Judge, Baikunthpur and got the bail within a day of filing of the application. When the regular Additional Sessions Judge was on leave, that too for a small period, what persuaded the learned Additional Sessions Judge to grant the bail in absence of the regular Additional Sessions Judge, that too in such a serious offence? This fact itself shows how the learned Additional Sessions Judge misused the judicial process.

Now coming to the question as to whether when the bail was granted almost 14 or 15 months back, is it appropriate to cancel the bail after a lapse of such a period, these applications for cancellation of bail were moved in the month of June, 2002, but they could not be heard for one reason or the other. As has been laid down by Hon''ble the Apex Court, in the case of Puran (supra), the ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. The Court further observed that it is to be kept in mind that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation.

In view of the law laid down by the Hon''ble Apex Court, if we look at the case of the main accused namely, Harjeet Singh & Gurubakhsh Singh, the order passed by the learned Additional Sessions Judge, Baikunthpur, granting bail to these two accused persons is wholly unjustified, illegal and perverse for the following reasons:

(a) Harjeet Singh came in a D.I. jeep along with other accused persons armed with gun, Katta & sword and said that if he takes back the money, he will murder him and immediately fired on him, which shot hit not only Shiv Kumar Gupta, but also the other persons standing nearby him they also received the shot injuries. Thereafter, Gurubakhsh Singh assaulted with sword on the head of Shiv Kumar Gupta, his parietal bone was fractured and on account of that he was immediately hospitalized.

(b) Accused Harjeet Singh was released on bail within twenty days and accused Gurubakhsh Singh was released on bail within forty days of the incident ignoring the material on record, by a perverse order merely on the ground that other accused persons have been released on bail.

(c) The two accused persons, both the time, selected the occasions for moving the bail application only when the regular Additional Sessions Judge, Manendragarh was on leave i.e. 22nd April, 2002 and 14th May, 2002. On both the occasions these accused persons went to the Court of Additional Sessions Judge at Baikunthpur, moved the bail application and got the release order the very next day.

(d) While granting bail to the two accused, the learned Additional Sessions Judge had forgotten or lost sight of the following facts that these two accused persons are the main accused for the reason that main dispute was with them; the took persons with them in a D.I. Jeep; they were the persons armed with guns, Katta & sword; they were the main assailants; accused Harjeet Singh first threatened Shiv Kumar Gupta to kill him and thereafter, fired at him and accused Gurubakhsh Singh also fired and assaulted the injured with sword; and not only injured Shiv Kumar Gupta, but other persons who were standing there also received shot injuries.

These facts themselves reveal much more than what is argued by the learned counsel for the complainant/applicant. If such a perverse order is not reversed and set aside then people are bound to lose faith in the judicial system. Therefore, in view of the observations of Hon''ble Apex Court in the aforesaid judgments, in my considered opinion, it is a fit case in which the bail granted to these two accused persons should be cancelled u/s 439 (2) of the Cr.P.C. and they should be immediately arrested and committed to judicial custody.

On enquiry, it was informed by the Registry that Mr. A.K. Patel has already taken voluntary retirement because in some other matter regarding the misuse of judicial powers by him, some charge sheet was served on him. As Mr. A.K. Patel has already retired, I am not suggesting any action against him.

In the result, as far as the question of cancellation of bail of accused (i) Ajay Arora; (ii) Jasbir Singh Raina alias Babloo; (iii) Gurjeet Singh Raina alias Tingu; (iv) Narendra Singh Raina alias Bunty; (v) Surendra Sindwani and (vi) Harun Memon is concerned, the applications for cancellation of their bail are rejected. However, the applications for cancellation of bail of accused Harjeet Singh & Gurubakhsh Singh are allowed. The impugned orders dated 23rd April, 2002 and 15th May, 2002 granting the bail to Harjeet Singh and Gurubakhsh Singh, respectively are set aside. Their bail bonds are cancelled and they be immediately arrested and sent to the judicial custody. As the bail of two accused has been cancelled, the Additional Sessions Judge is directed to expedite trial and conclude the same within a period of three months.