IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.M.O. Nos.119 of 2010, 159 of 2010 and Criminal Revision No.131 of 2010. Judgment Reserved on:08.09.2010. Date of decision: 19.10.2010. 1. Cr.M.M.O No.119 of 2010. Vivek Kumat Tandon … …Petitioner Versus State of H.P. … …Respondent 2. Cr.M.M.O No.159 of 2010. Sukhwinder Singh … …Petitioner Versus State of H.P. … …Respondent 3. Cr.Revision No.131 of 2010. Ravi Kumar & Others … …Petitioners Versus State of H.P. … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioner: Mr.R.K. Gautam, Senior Advocate with Ms.Archana Dutt, Advocate in Cr.M.M.O. No.119 of 2010. Mr.Neeraj K.Sharma, Advocate, in Cr.M.M.O. No.159 of 2010. Mr.N.K. Thakur, Advocate, in Cr.Revision No.131 of 2010. For the Respondents: Mr.P.K. Sharma, Additional Advocate General with Ms.Shubh Mahajan, Deputy Advocate General. Dev Darshan Sud,J. These three petitions are being disposed of by a common judgment as they challenge the order, dated 17.6.2010 of the learned Sessions Judge, Una, passed on 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 application(s) under Section 439(2) of the Code of Criminal Procedure canceling the bail of the accused- petitioners already granted to them were directed to be detained in judicial custody. 2. The petitioners herein had been granted bail by the learned Sessions Judge in FIR No.219 of 2008, dated 15.9.2008 under Sections 302, 364, 392, 120-B, 411 and 201 IPC registered with the Police Station Haroli, District Una. 3. The genesis of the entire controversy was that application(s) were filed by the Superintendent of Police through the Public Prosecutor in the pending case which was under trial for offences under Sections 302, 364, 392, 120-B, 411 and 201 IPC in FIR No.219 of 2008, dated 15.9.2008. The learned Sessions Judge notices that the accused persons were enlarged on bail and have misused their liberty, as is evident from the testimony of PW-11, Deepak Rai, recorded on 17.6.2010. After stating that he was threatened by the accused he states in his cross-examination that “I am receiving threatening calls on my mobile phone and, therefore, I cannot say who had threatened me and who out of the accused persons had threatened me and who had not threatened me”. The learned Court holds that this was circumstance enough to exercise powers under Section 439(2), to cancel the liberty granted to the petitioners to be enlarged on bail and order their detention. Subsequent applications under Section 439 3 of the Code of Criminal Procedure for grant of bail, were filed by the accused persons, but these were also dismissed on the ground that all of applicants therein had resorted to threats to PW-11 and there could be no greater abuse of the process of law. 4. Learned counsel appearing for the petitioners in each of the case have urged a number of grounds in support of their contentions that the order has not been passed in accordance with law. 5. I have heard learned counsel for the parties and have also gone through the record of the case. 6. What pains me to note in these cases is that on 17.6.2010 the Court records in clear terms that the petitioners have abused the liberty granted to them. The Court records:- “17.6.2010. Present: Sh.A.K.Nadda, PP for the State. Accused person Santokh Singh in custody of HHC Bhag Singh No.835 and C.Nardev Singh No.1142 of P.L.Dharamshala with counsel Ms.Seema Sharma, Advocate. Accused Narinder alias Sodhi in custody of Surinder HC No.1362 Paramjit Singh, C.No.790 and C.Ranjit Singh No.2030 of P.L. Jallandhar. Accused Ravin Kumar, Brij Mohan and Rohit in person with counsel Sh.S.S. Boparai, Advocate. Accused person Dharmender in person. Sh.M.S.Sodhi, Advocate for accused persons Dharmender and Narinder. Accused person V.K. Tandon with counsel Sh.Sanjiv Sharma, Adv. 4 Accused person Sukhwinder Singh with counsel Sh.Y.K. Pathak, Adv. Two PWs Surinder and Deepak Rai present and examined. PW Sohan Singh and Karanjit are given up. PW Sohan Singh is present and is stated to have been manoeuvred by the accused persons. No other witness present. The Public Prosecutor had filed application for cancellation of the bail of the accused persons. It is stated that the accused persons after the commission of the crime had been tampering with the prosecution evidence and they had even threatened PW-11 Deepak Rai. PW-11 Deepak Rai in his evidence had also reiterated the charge of his being manoeuvred by the accused persons present in the court. Hence, vide separate order the bail of the accused persons is cancelled. Put up for more evidence on 18.6.2010.” 7. It has been noticed that an application for cancellation of bail has been filed and in this application even an advocate has been named as one of the accused. It is undisputed before me that pursuant to the information, having been received by the police, First Information Report has been lodged with respect to the commission of this offence and that bail has been granted to the advocate. 8. The application was filed and the purport in brief what is submitted by the police was:- “Kramank: 21796 Preshak:- Police Adhikshak, Una, Zila Una, 5 Preshit:- Zila avam Sattar Nyayadheesh, Una, Zila Una. Dinank: 17.6.10. Vishya: Abhiyog Sankhya 219/08 dinank 15.9.08 u/s 395, 364, 302 IPC Thana Haroli, Zila mein gavah Deepak Kumar ko jan se marne ki abhiyukton dwara dhamkiyan den eke sambadh mein. Mahoday, Uprokat Vishya ke sambandh mein nivedan hai ki uprokat abhiyog jo aapke nalayaya mein vicharadhin hai mein mukhya gavah Deepak Kumar ko abhiyukat jo is abhiyog mein jamanat par riha huye hain jan se marne va parivar ko khatan karne ki lagatar dhamakiyan de rahe hain. Aaj is case mein gavahi hai. Jo abhiyukat va unka vakil gavah Deepak Kumar ko adalat ke bahar bhi dhamka va dara rahe hain. Is sambandh mein thana Haroli mein rapat No.9 dinank 16.6.10 bhi likhi gai hai. Jo nakal rapat baraye karvai nayayalaya ko preshit hai. Bhavdiya Sd/- Police Adhikshak Una, Zila Una.” 9. What is urged by the learned counsel appearing for the petitioners is the principle on the basis of which a bail granted can be cancelled. The first case referred to by the learned counsel appearing for the petitioner is State (Delhi Administration) vs. Sanjay Gandhi, (1978)2 SCC 411. Learned counsel submits that it is only in compelling circumstances and to be established on record that bail can be cancelled. In particular they refer in extenso to the law laid 6 down by the Supreme Court in Sanjay Gandhi’s case supra holding:- “13. … … … … The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. A brother, a sister or a parent who has seen the commission of crime, may resile in the Court from a statement recorded during the course of investigation. That happens instinctively, out of natural love and affection, not out of persuasion by the accused. The witness has a stake in the innocence of the accused and tries therefore to save him from the guilt. Likewise, an employee may, out of a sense of gratitude, oblige the employer by uttering an untruth without pressure or persuasion. In other words, the objective fact that witnesses have turned hostile must be shown to bear a causal connection with the subjective involvement therein of the respondent. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused. Inconsistent testimony can no more be ascribed by itself to the influence of the accused than consistent testimony, by itself, can be ascribed to the pressure of the prosecution. Therefore, Mr. Mulla is right that one has to countenance a reasonable possibility that the employees of Maruti like the approver Yadav might have, of their own volition, attempted to protect the respondent from involvement in criminal charges. Their willingness now to oblige the respondent would depend upon how much the respondent has obliged them in the past. It is therefore necessary for the prosecution to show some act or conduct on the part of the respondent from which a reasonable inference may arise that the witnesses have gone back on their statements as a result of an intervention by or on behalf of the respondent. 14. … … … … The issue of cancellation of bail can only arise in criminal cases, but that does not mean that every incidental matter in a criminal case must be proved beyond 7 a reasonable doubt like the guilt of the accused. Whether an accused is absconding and therefore his property can be attached under S. 83 of the Criminal P. C., whether a search of person or premises was taken as required by the provisions of S. 100 of the Code, whether a confession is recorded in strict accordance with the requirements of S. 164 of the Code and whether a fact was discovered in consequence of information received from an accused as required by S. 27 of the Evidence Act are all matters which fall peculiarly within the ordinary sweep of criminal trials. But though the guilt of the accused in cases which involve the assessment of these facts has to be established beyond a reasonable doubt, these various facts are not required to be proved by the same rigorous standard. Indeed, proof of facts by preponderance of probabilities as in a civil case is not foreign to criminal jurisprudence because, in cases where the statute raises a presumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused. The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail. 24. … … … … Therefore, the power to take back in custody an accused who has been enlarged on bail has to be 8 exercised with care and circumspection. But the power, though of an extra-ordinary 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 reduce it to a dead letter and 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.” (pp.419-420 & 423) 10. They submit that in Bhagirathsinh s/o Mahipat Singh Judeja vs. State of Gujarat, (1984)1 SCC 284, this principle has been reiterated. Learned counsel also relied upon the decision in Raghubir Singh and others vs. State of Bihar, (1986)4 SCC 481 holding:- “22. The result of our discussion and the case-law in this: An order for release on bail made under the proviso to S. 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under S. 309(2). The order for release on bail may however be cancelled under S. 437(5) or S. 439(2). Generally 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 course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty 9 granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to S. 167(2) for the default of the prosecution in not completing the investigation in sixty days. after the defect is cured by the filing of a charge- sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed.” (p.502) 11. Learned Additional Advocate General, relying upon the decision in Sant Ram vs. State of Haryana and Others, 1994 Supp(2) SCC 205, submits that where the learned Sessions Judge has taken all the relevant factors into consideration for cancellation of bail, it is not the domain of this Court to interfere with that order. He emphasizes that the application filed by the police is clear stating in no uncertain terms that not only was the witness threatened on the telephone as stated by him in evidence and as elicited in cross- examination but he was threatened even outside the Court room by the lawyer appearing for the accused. In these circumstances, the entire criminal justice system has been held to ransom by these persons. 12. I do find that if what is stated in the application is the correct state of affairs that by itself is a ground sufficient to deny them enlargement on bail. What must be remembered is that bail is 10 granted on statutory principles and once enlarged, it is the bounden duty of the person(s) to respect the law and not to interfere with the trial which would otherwise be reduced to a mockery and criminal justice system held to ransom. 13. Some other averments made by the petitioners may be noticed. The first ground is that the witness PW-11 has not been able to identify each and every one of them. Looking to the testimony of PW-11, all I need say is that he has been threatened constantly on phone where it is not possible for him to identify any particular individual and the second aspect that the petitioners were given no chance or opportunity to meet the case against them, I find that PW-11 has been subjected to searching cross-examination by the accused who was affirmed in his answer that he infact had been threatened by the accused person. 14. The trial is now near to its conclusion. The accused persons have been detained in judicial custody. What I find distressing is that despite a clear allegation having been made against the advocate conducting the case and a First Information Report having been filed against him, still bail has been granted to him. 15. In these circumstances, the order passed by the learned trial Court is modified to the extent that:- 11 (a) the petitioners shall be enlarged on bail subject to their furnishing personal bonds in the sum of Rs.one lac each with one surety each in the like amount to the satisfaction of the learned Sessions Judge, Una, undertaking to appear in the Court on each and every date of hearing; (b) the petitioners shall not tamper with the prosecution evidence or in any manner try to overawe or influence or terrorize or threaten the prosecution witnesses; (c) The petitioners shall not obstruct the smooth progress of the investigation as well as trial; (d) Each of the accused shall report to the police station at Haroli once in every ten days. In case it is found that any complaint is made either by PW-11 Deepak Rai or any other person that the accused either directly or indirectly are influencing the witnesses or interfering in the progress of the trial, the bail bonds shall be cancelled and the petitioner shall be taken forthwith into police custody till conclusion of the trial and after that if sentenced, to serve out sentence as imposed by the trial Court. 12 (e) A further direction is issued to the Station House Officer, Haroli that he shall be in touch with PW- 11 Deepak Rai to inquire as to whether he is being threatened by the petitioners directly or indirectly. October 19, 2010. (Dev Darshan Sud) (aks) Judge.