Crl.M.No.M-8695 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.M.No.M-8695 of 2010 (O&M) Date of Decision:September 16, 2010 Subhash Chander .....Petitioner v. State of Haryana and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.S.K.Sud, Advocate for the petitioner. Mr.P.M.Anand, Addl.A.G, Haryana. Mr.Rajesh Lamba, Advocate for respondent no.2. ...... RAM CHAND GUPTA, J.(Oral) The present petition has been filed under Section 439(2)of the Code of Criminal Procedure (in short `Cr.P.C.') for cancellation of anticipatory bail granted to respondent no.2-Shish Ram by learned Additional Sessions Judge, Gurgaon, vide order dated 11.12.2009 in Application No.240 of 2009 in case FIR No.186, dated 8.10.2009, under Sections 148, 149, 323, 307, 325, 120-B IPC and Section 25 of the Arms Act, registered at Police Station Bilaspur, District Gurgaon. I have heard learned counsel for the parties and have gone through the whole record carefully. Brief matrix of the case are as under:- Subhash Chander, petitioner-complainant got his statement recorded with the police when he was lying admitted in General Hospital, Gurgaon, on account of injuries. There was some panchayat land near their house, which was being used by them for the last 14-15 years as their residence, which was given to his father by the panchayat. They also used to tether cattle in the said land. Regarding the said land a suit was also filed by one Ram Kishan against the complainant party, which was decided in Crl.M.No.M-8695 of 2010 (O&M) -2- their favour. There was boundary wall of the house, which was in dilapidated condition and hence the same was demolished and reconstruction of the wall was started by them about 5-6 days before this occurrence. However, Ram Kishan and his sons, namely, Bansi Lal and Shish Ram, respondent no.2, came to them several times and told them to stop the construction work, otherwise they would have to face the consequences. They had also given a false complaint against them in the police station. Three-four days prior to this occurrence son of Ram Kishan, Bansi Lal, who is an Advocate, and his brother Shish Ram, respondent no.2, had come to their house at about 6-7 p.m. and Bansi Lal told them that they were asking them again and again to stop construction work and however the same was not stopped. However, complainant and other family members informed them that they were doing construction work in their own right and however, Bansi Lal got annoyed and told his brother Shish Ram, respondent no.2 that he should finish one or two family members of the complainant party and that he is an Advocate and no harm would be caused to them. On 8.10.2009, at about 12.30 noon, complainant and his father Bhagwan Singh, brother Rambir Singh, mother Smt.Anguri Devi and younger brother Surender were present in the house. They had started the construction work and in the meantime one Qualis vehicle came from the side of well and stopped in front of their house. Shish Ram, resondent no.2, alongwith ten other young boys, who were not known to the complainant, got down the said vehicle. They were all armed with hockeys and lathis and three of them were having pistols. They started throwing stones and bricks towards complainant and other family members. One of the boys had also given danda blow to the mother of the complainant. Due to fear they went upstairs. However, one of the persons fired three shots towards complainant and one of the shot hit at back side of knee of the complainant, due to which he fell down. One of them also got injured his brother Surender Singh and thereafter all of them ran away by sitting in the said Qualis Vehicle. The occurrence was witnessed by Jag Ram son of Shri Jal Singh and Rajbir son of Chandri. On these allegations, FIR for offences punishable under Sections 148, 323, 325, 307 read with Sections 149 and 120-B IPC and Crl.M.No.M-8695 of 2010 (O&M) -3- Section 25 of the Arms Act was registered against the accused. Respondent no.2 -Shish Ram filed an application for anticipatory bail before learned Additional Sessions Judge, Gurgaon. It was argued on behalf of respondent no.2 that no injury has been attributed to him to any member of the complainant party and that nothing is to be recovered from his possession. Though bail application had been opposed on behalf of the State, however, anticipatory bail was granted by learned Additional Sessions Judge, Gurgaon, vide order dated 11.12.2009, operative part of which reads as under:- “7. However, without commenting on the merits and to meet the ends of justice, the bail application is hereby accepted and the applicant-accused Shish Ram is hereby ordered to be released on bail in the event of his arrest by the investigation officer to his satisfaction. The applicant is directed to join the investigation as and when called by the Investigating Officer and he will also comply with the terms and conditions of Section 438(2) Cr.P.C. File be consigned to record room.” Hence, application for cancellation of bail was moved on behalf of the State by Naresh Kumar, ASI, Investigating Officer of this case on 8.1.2010, Annexure P3, stating that he visited the house of accused Shish Ram time and again and however, he refused to join the investigation. It has also been stated that he had not joined the investigation, despite written notice. Hence, it was prayed that anticipatory bail granted to the accused be cancelled. However, it has been contended by learned counsel for the petitioner-complainant that the said application was dismissed by learned trial Court. Later on respondent no.2 joined the investigation. However, it was stated by the Investigating Officer that though he joined the investigation, however, he did not cooperate and did not disclose the names of other accused and the particulars of vehicle involved in the occurrence and that he had also not got recovered the weapons of offence and hence it was prayed that order granting anticipatory bail to respondent no.2 be recalled. However, learned Additional Sessions Judge, Gurgaon, rejected the said request of the Investigating Officer by observing as under:- Crl.M.No.M-8695 of 2010 (O&M) -4- “ ------ However, non-disclosure of the names of other/ assailants or not getting the recovery of the alleged weapon of offence is no ground to cancel the anticipatory bail. Therefore, since the accused has now joined the investigation which was main ground for cancelling the anticipatory bail and thus, the said application has become infructuous and the same is hereby dismissed being infructuous.” It has been contended by learned counsel for the petitioner -complainant that petitioner has received fire arm injury and that name of respondent no.2 has been mentioned in the FIR. It is further contended that names of the other-accused accompanying respondent no.2 at the time of occurrence were in his knowledge only as they were not known to the petitioner. It is further contended that the vehicle in which respondent no.2 and other assailants had come and the weapons used for committing offence are also yet to be recovered and hence, it is contended that custodial interrogation of respondent no.2 is necessary. Further contended that however without considering the said facts respondent no.2 had been granted anticipatory bail by learned Additional Sessions Judge, Gurgaon. Further argues that no accused has since been arrested in this case and that even application filed on behalf of the Investigating Officer for cancellation of bail has also been dismissed by learned trial Court without any reason. Further contended that even if State has not filed any petition for cancellation of bail before this Court, complainant, being effected party, can always question for granting the bail. Learned State counsel has supported the present petition filed on behalf of the complainant. Reply has been filed on behalf of the State taking the plea that learned Additional Sessions Judge, Gurgaon, did not take into consideration the reply of the Investigating Officer to the bail application and did not consider the facts that names of other accused involved in the occurrence, whereabouts of the weapons used in the incident and the vehicle involved during incident are to be ascertained from respondent no.2 and that respondent no.2 did not cooperate in the investigation while joining the investigation and hence custodial interrogation of respondent no.2 is necessary. It is also contended that investigation could not proceed ahead on account of non-cooperation on the Crl.M.No.M-8695 of 2010 (O&M) -5- part of respondent no.2. On the other hand, affidavit has been filed on behalf of respondent no.2-Shish Ram and it has been contended by his counsel that grant of bail is a valuable right, which has been vested in respondent no.2- accused and that law is well settled that bail once granted can be cancelled only if accused misuses his liberty by indulging in similar activity, interferes with the course of investigation, attempts to temper with the evidence of witnesses, threatens witnesses or indulges in similar activities which would hamper smooth investigation, likelihood of his fleeing to another country, or becoming unavailable to the investigating agency, or attempts to place himself beyond the reach of his surety. It is further contended that however, no such ground exists for cancellation of bail granted to respondent no.2. Hence, it is contended that High Court should not set aside the bail already granted by learned Additional Sessions Judge by taking a different view on the same set of material. He has also placed reliance upon Savitri Agarwal and Ors. v. State of Maharashtra and another 2009(3) RCR (Criminal) 792. Law is well settled that though conduct subsequent to release on bail and the supervening circumstances alone are relevant factor for cancellation of bail, and however the same does not restrict the power of a superior Court to cancel the bail in appropriate cases on the other grounds , i.e., if it finds that Court granting bail had acted on irrelevant material or if there was non application of mind or failure to take note of statutory bar to grant bail or if there is manifest impropriety, a order for cancellation of bail can be made. On the point reliance has been placed on Subodh Kumar Yadav v. State of Bihar and another 2010 (1) RCR (Criminal) 600. Relevant paragraphs of which read as under: “9. Learned counsel for the appellant contended that cancellation of bail can be only with reference to conduct subsequent to release on bail and the supervening circumstances. According to him an application for cancellation will not be maintainable with reference to what trasnpired prior to the grant of bail. He relied upon the following observations in State of U.P. v. Amarmani Tripathi 2005(4) RCR (Criminal) 280: 2005 (3) Apex Ciminal 241: Crl.M.No.M-8695 of 2010 (O&M) -6- [(2005) 8 SCC 21], in support of the said contention:- `The decisions in Dolat Ram v. State of Haryana [1995(1) SCC 349] and Samarendranath Bhattacharjee v. State of West Bengal, 2004(4) RCR (Criminal) 113: 2004(3) Apex Criminal 473: [ 2004(11) SCC 165] relate to applications for cancellation of bail and not apeals against orders granting bail. In an application for cancellation, conduct subsequent to release on bail and the supervening circumstances alone are relevant. But in an appeal against grant of bail, all aspects that were relevant under Section 439 read with Section 437, continue to be relevant. We, however, agree that while considering and deciding the appeals against grant of bail, where the accused has been at large for a considerable time, the post-bail conduct and supervening circumstances will also have to be taken note of. But they are not the only factors to be considered as in the case of applications for cancellation of bail.' [emphasis supplied] A careful reading of the said observations shows that while considering the factors relevant for consideration of bail already granted vis-a-viz the factors relevant for rejection of bail, this Court pointed out that for cancellation of bail, conduct subsequent to release on bail and supervening circumstances will be relevant. The said observations were not intended to restrict the power of a superior court to cancel bail in appopriate cases on other grounds. In fact it is now well settled that if a superior court finds that the court granting bail had acted on irrevevant material or if there was non-application of mind or failure to take note of any statutory bar to grant bail, or if there was manifest impropriety as for example failure to hear the public prosecutor/complainant where required, an order for cancellation of bail can in fact be made. (See Gajanand Agarwal v. State of Orissa, 2006(4) RCR (Criminal) 311: 2006(3) Apex Criminal 305 : [2006(9) SCALE 378] and Rizwan Akbar Hussain Syyed v. Mehmood Hussain, 2007 Crl.M.No.M-8695 of 2010 (O&M) -7- (4) RCR (Criminal) 27: 2007(4) RAJ 463: [2007(1) SCC 368]. 10. Further, while cancelling bail, the superior Court would be justified in considering the question whether irrelevant material were taken into consideration by the court granting bail.” So far as competency of petitioner-complainant to file petition for cancellation of bail under Section 439(2) Cr.P.C. is concerned, the said question is no more res integra. Law is well settled that power under Section 439 (2) Cr.P.C. for cancellation of bail can be exercised at the instance of State as well as at the instance of aggrieved party. In Brij Nandan Jaiswal v. Munna @ Munna Jaiswal and another 2009 (1) RCR (Criminal) 529, it has been observed by Hon'ble Apex Court as under: “7. It is now a settled law that complainant can always question the order granting bail if the said order is not validly passed. It is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also. In our opinion, therefore, the complainant could question the merits of the order granting bail. However, we find from the order that no reasons were given by the learned Judge while granting the bail and it seems to have been granted almost mechanically without considering the pros and cons of the matter. While granting bail, particularly in serious cases like murder some reasons justifying the grant are necessary.” Hence, in view of this legal preposition, this Court is to see as to whether granting of anticipatory bail to respondent no.2 by learned Additional Sessions Judge, Gurgaon, vide impugned order, is based on relevant material and is a legal one and as to whether dismissal of application for cancellation of bail moved on behalf of the Investigating Officer is also based on valid reasons or not. There is no dispute regarding legal preposition as held by Hon'ble Apex Court in Savitri Agarwal's case (supra), on which reliance has been placed on behalf of respondent no.2 that once bail has been granted in a non bailable case, ordinarily the same is not to be cancelled by superior courts on the same material and however, the same can be Crl.M.No.M-8695 of 2010 (O&M) -8- cancelled, if there are very cogent and overwhelming circumstances existing for an order directing cancellation of bail already granted. In that case the bail was granted by learned Sessions Judge as there was two dying declarations of the deceased; one given before arrival of parents of the deceased and another after arrival of parents of deceased and in both the dying declarations, she had stated that she and her son caught fire while she was pouring kerosene oil in a lamp, which accidently fell down, the oil got spilled over and both of them got burnt. In that background it was observed by Hon'ble Apex Court that merely because High Court had a different view on same set of material, which had been taken into consideration by the Sessions Judge, it was not a valid ground to label the order passed by the Sessions Judge as perverse. A Constitution Bench of Hon'ble Apex Court in Gurbaksh Singh Sibbia etc. v. The State of Punjab 1980 AIR (SC) 1632, in the matter of granting anticipatory bail observed as under:- “14. Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipaotry bail because, firstly, there are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be excersied by Courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipaotry bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges.” It was further held as under: “33. We would, therefore, prefer to leave the High Court and Crl.M.No.M-8695 of 2010 (O&M) -9- the Court of Session to exercise their jurisdiction under Section 438 by a wise and careful use of their discretion which by their long tranining and experience they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with pricniples governing the grant of bail which are recognised over the years, than by divesting, them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the ground that, after all, “the legislature in its wisdom” has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted in their care by the legislature in its wisdom if they err, they are liable to be corrected.” Hon'ble Apex Court in Savitri Agarwal's case (Supra) while placing reliance upon Gurbakh Singh's case (supra) observed as under: 17. The Court felt that wide discretionary power conferred by the Legislature on the higher echelons in the criminal justice delivery system cannot be put in the form of straight-jacket rules for universal application as the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. A circumstance which, in a given case, turns out to be conclusive, may or may not have any significance in another case. While cautioning against imposition of unnecessary restrictions on the scope of the Section, because, in its opinion, over generous infusion of constraints and conditions, which were not to be found in Section 438 of the Code, could make the provision constitutionally vulnerable, since the right of personal freedom, as enshrined in Article 21 of the Constitution, cannot be made to depend on compliance with unreasonable Crl.M.No.M-8695 of 2010 (O&M) -10- restrictions, the Constitution Bench laid down the following guidelines, which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail: i) Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise. ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere "fear" is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non- bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section. iii) The observations made in Balchand Jain's case (supra), regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot be treated as conclusive on the point. There is no warrant for reading into Section Crl.M.No.M-8695 of 2010 (O&M) -11- 438, the conditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal. iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One such condition can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed. vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested. vii) The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused Crl.M.No.M-8695 of 2010 (O&M) -12- must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested. viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad-interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage. ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the Court may, if