AI Structured Summary
Not yet generated for this judgment
Judgment
V.K. Jhanji, J.
This will dispose of Criminal Miscellaneous No. 8029M of 1994 as well as Criminal Miscellaneous No. 10432M of 1994.
Criminal Miscellaneous No. 10432M of 1994 is a petition preferred by Shashi Kumar Gupta under Section 438 of the Code of Criminal Procedure seeking prearrest bail in case R.C. No. 12 of 1992 SPE, Chandigarh, registered against him under Sections 302/120B of Indian Penal Code on the ground that he has already been allowed bail under Sections 364, 386 and 511 of Indian Penal Code. Criminal Misc. No. 8029M of 1994 has been filed by C.B.I. for cancellation of bail granted to Shashi Kumar Gupta which now stands converted into Sections 302/120B of Indian Penal Code.
For the disposal of these petitions, it is necessary to notice the following facts:
Shashi Kumar Gupta, petitioner is the elder brother of Pardeep Kumar Gupta. On the statement made by Shashi Kumar Gupta, an FIR No. 130 of 1990 was registered. Petitioner in his statement had stated as follows:
"I am living at the address given above and in the same very house, my younger brother Pardeep Kumar is also living with family who has two sons Annurag aged 12 years and Sachin aged 10 years and they are studying in St. Thomas School, Jagadhri. Yesterday, at about 3 P.M. both these brothers left the house saying that they were going for playing the video game to the shop of Surinder K. Gulati and today in the evening also, they had gone to his shop and his shop is in the Model Town. After waiting till late at night for the return of these two children who did not return, we made enquiries from the houses of friends of the children but could not have any trace of the whereabouts of the two. As far as, we think, it appears that both these boys have been kidnapped by someone known or unknown person to kill them. The identification features of these boys are:
Anurag:, Aged about 12 years
Fair Complex
Wearing Blue Jean pant, White shirt,, yellow sweater having border at the bottom of red colour. Upper teeth from front side are little protruding outside, (sic)
Sachin : Age 10 years,, wheatish colour wearing blue baggie, (sic) brown
I was going to report the matter to the Police Station when you have met. Action may be taken. I have heard my statement which is correct.
Sd/ Shashi Kumar Gupta."
Since the police could not come to know about the whereabouts of the children, Pardeep Kumar, father of Anurag and Sachin, apprehending that proper investigation is not being made by the police, filed Civil Writ Petition No. 3868 of 1992 in this Court seeking a direction for entrusting the investigation to C.B.I. A Division Bench of this Court, vide order dated 24.4.1992, allowed the writ petition and directed the registration of the case by the S.P., C.B.I., Chandigarh. A further direction was given to the S.P. to conduct the investigation under his own supervision. In pursuance to this direction, C.B.I. registered a case on 8.6.1992. On suspicion, petitioner Shashi Kumar Gupta was arrested on 7.9.1992 but vide order dated 23.9.1992 was allowed bail by the special Judge, Chandigarh. It may be noticed at this stage that till that time, the case had not been converted into Sections 302/ 120B of Indian Penal Code. During the investigation, C.B.I. arrested from Patiala one Sunil Kumar Gautam, resident of P.S. Bhora Kalan District Muzaffarnagar. In his statement made under Section 164, Cr.P.C. Sunil Kumar Gautam admitted before the Special Magistrate that both the sons of Pardeep Kumar Gupta were got kidnapped by the petitioner on account of property dispute between the two brothers. He also stated that he was one of the members of the gang hired by the petitioner. He also named Kala alias Afzal, Irfan, Ramesh Kumar, Pappu, the other members of the gang. While Sunil Kumar Gautam was in judicial custody, C.B.I. filed an application before the Special Judge for cancellation of bail which had earlier been granted to the petitioner. The application was dismissed by the Special Judge, Chandigarh, vide order dated 11.4.1994 primarily on the ground that the offence was alleged to have been committed in District Yamuna Nagar and as such Special Judge, Ambala has the jurisdiction to consider the question of cancellation of bail. Accordingly, C.B.I. was directed to move the competent Court having jurisdiction in the matter. Being aggrieved of the order, C.B.I. has filed Criminal Miscellaneous No. 8029M of 1994 for cancellation of bail granted to Shashi Kumar Gupta whereas Criminal Miscellaneous No. 10432M of 1994 has been preferred by petitioner shashi Kumar Gupta seeking prearrest bail in the case which now stands converted into Sections 302/120B of Indian Penal Code.
Learned counsel for Shashi Kumar Gupta has contended that once bail has been allowed, it can be cancelled only where by reason of supervening circumstances, it would no longer be conducive to a fair trial to allow the accused to retain his freedom. According to the counsel, no exceptional circumstance has come to light warranting withdrawal of the benefit of bail which has already been allowed to the petitioner. In support of his submission, he has referred to :
(i) AIR 1978 SC 179, Gurcharan Singh and others v. Raj Kumar Sharma and others
(ii) AIR 1978 SC 961. Delhi Admn. v. Sanjay Gandhi
(iii) 1983(1) RCR 51 Rattan Lal Nagori v. Bal Chand & Ors )
(iv) 1984 Cr. L.J. 1056 Ramesh Kumar v. State of Himachal Pradesh
(v) 1992(3) Crimes 945 Rakesh Kumar v. State of U.P.
Mr. R.K. Handa, Advocate appearing for C.B.I has contended that at the time when the petitioner was released on bail, considerations which prevailed with the Special Judge were entirely different because at that time C.B.I. had not come into possession of the material connecting the petitioner with the heinous crime of kidnapping and killing of the children. Counsel for C.B.I. also contended that one other member of the gang who was hired by the petitioner, namely, Irfan was arrested by U.P. Police and after obtaining warrants of production, he was produced in Court on 20.8.1994 when he was remanded to the police custody and as on today he is in police custody. Counsel has further stated that Irfran, in his statement before the police, has also implicated the petitioner.
After hearing the learned counsel for the parties at length, I am of the view that Criminal Misc. No. 8029M of 1994 preferred by C.B.I. deserves to succeed whereas Criminal Misc. No. 10432M of 1994 filed by Shashi Kumar Gupta for prearrest bail deserves to be dismissed.
There is no dispute with the proposition of law that the power to cancel bail and to take back the accused in custody must be exercised with care and circumspection and only in appropriate cases as canvassed by the learned counsel for the petitioner and approved by the Supreme Court in Delhi Admn. v. Sanjay Gandhi, AIR 1978 SC 961 reading thus :
"The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities. It is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will suffer the Courts to be silent spectators to the subversion of the judicial process. We might as well wind up the Courts and bolt their doors against all than permit a few to ensure that justice shall not be done."
However, I am not prepared to accept the argument of learned counsel for the petitioner that once an accused has been enlarged on bail for a non bailable offence, his bail cannot be cancelled. There is no rule of universal application that once an accused has been enlarged on bail for a nonbailable offence, his bail cannot be cancelled. The overriding considerations in granting bail which are common both in the case of Section 437(1) and Section 439(1), are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offences of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out. The two paramount considerations, viz. likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair trial of the case in a Court of justice. It is essential that due and proper weight should be bestowed on these two factors apart from others. (see AIR 1978 S.C. 179).
10 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. The Special Judge was not justified in dismissing the application on the ground that the offence was alleged to have been committed within the jurisdiction of Special Judge, Ambala, and as such the Special Judge, Chandigarh, had no jurisdiction to cancel the bail. Under Section 439(2), the High Court or the Court of Sessions, has the power to direct that any person who has been released on bail under that Chapter, be arrested and committed to custody. Thus, if a person was admitted to bail by the Court of Sessions, not only that Court of Sessions could commit the person to custody but the High Court has also the power to exercise that power.
I also find no merit in the contention of learned counsel for the petitioner that the petitioner has been joining investigation as and when called by C.B.I. and thus is entitled to the concession of bail. Petitioner has been charged with an offence of grave nature. There is prima facia evidence available connecting the petitioner with the commission of crime of kidnapping and killing two innocent children for settling property dispute with his brother. The role alleged to have been played by the petitioner is of hiring a gang of killers. It is not a fit case where the petitioner can be extended privilege of bail. Thus, in the circumstances of this case, petitioner does not deserve the concession of anticipatory bail. Rather, the concession of bail which has already been allowed to him, deserves to be withdrawn.
Consequently, Criminal Misc. No. 10432M of 1994 shall stand dismmissd and Criminal Misc. No. 8029M of 1994 whereby C.B.I. has made a prayer for cancelling the bail already granted to the petitioner shall stand allowed. In consequence thereof, Shashi Kumar Gupta is ordered to be arrested and committed to custody.