Crl.Misc. No. M-26980 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-26980 of 2009 (O&M) Date of Decision:September 20,2010 Harjinder Singh ...........Petitioner Versus State of Haryana and another ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.N.S.Shekhawat, Advocate for the petitioner Ms.Latika Rai,Assistant Advocate General,Haryana Mr.Sanjiv Gupta,Advocate for respondent No.2 ** Sabina, J. Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure (for short `Cr.P.C.) for cancellation of bail granted to respondent No. 2 vide order dated 29.8.2009 (Annexure P6) passed by the Additional Sessions Judge, Fast Track Court, Sirsa (in case FIR No. 331) under Sections 148, 149, 302, 395, 120-B of the Indian Penal Code (for short `IPC') and Section 25 of the Arms Act,1959 registered at Police Station Rania, District Sirsa. Learned counsel for the petitioner has submitted that respondent No.2 had actively participated at the time of the occurrence. Respondent No.2-Mangal Singh was driving a jeep and had brought his co- accused at the spot. Respondent No.2 was arrested on 31.10.2008 i.e. after Crl.Misc. No. M-26980 of 2009 (O&M) 2 ten days of registration of the FIR. Bail application filed by respondent No.2 was dismissed by the trial Court on 28.4.2009. Raghbir Singh and respondent No.2 filed separate petitions seeking bail in this Court. Petition seeking bail filed by Raghbir Singh was allowed by this court on 18.8.2009,whereas,the petition filed by respondent No.2 seeking regular bail was dismissed as withdrawn on the same date. Despite the said fact, the trial Court has granted bail to respondent No.2 on 29.8.2009 Learned counsel for respondent No.2 has submitted that Mangal Singh had a good case on merits and,hence, he had been rightly granted bail by the trial Court. Now, respondent No.2 is on regular bail for the last more than one year and has not misused the concession of bail. The following parameters to be observed by a Court while granting bail to an accused were illustrative laid down by the Apex Court in Ram Govind Upadhyay v. Sudarshan Singh 2002(2) RCR (Crl) 250:- (a) While granting bail the Court has to keep in mind not only the nature of accusations, but the servity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weight with the Court in the matter of grant of bail. © While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support the charge. (d) Frivolity, in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in Crl.Misc. No. M-26980 of 2009 (O&M) 3 the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” In Panchanan Mishra v. Digambar Mishra, 2005(1) RCR (Criminal) 712, Apex Court while considering the question of cancellation of bail, observed: “The object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime..... It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation.” The facts of the present case need to be examined in the perspective as to whether the present case warrants cancellation of bail or not. FIR in question was lodged on 21.10.2008. The allegations in the FIR are that on the day of occurrence, the complainant was travelling with Gurmit Singh on one motor cycle and they were following motor Cycle No. HR44 B3765 driven by the maternal uncle of the complainant with Kashmir Singh as a pillion rider after Court hearing. At about 5.30 P.M., when they reached Dhani Jagat Singh, a jeep driven by respondent No.2-Mangal Singh followed by Bolero Vehicle driven by Vakila Singh came from behind and after crossing both the motor cycles, the said vehicles stopped the motor Crl.Misc. No. M-26980 of 2009 (O&M) 4 cycle driven by the uncle of the complainant. As a result of this, both the motor cycle riders fell down. The assailants got down from the vehicle and inflicted injuries on the person of the maternal uncle of the complainant with their respective weapons. Thereafter Judge Singh fired a shot with his revolver on the right temple of the maternal uncle of the complainant. The assailants then fled away from the spot. As a result of this, maternal uncle of the complainant died. Respondent No.2 applied for bail and the learned Sessions Judge Sirsa vide order dated 28.4.2009 (Annexure P2) dismissed the bail application on merits. Thereafter, petitioner filed Criminal Misc. No. M-12611 of 2009 seeking regular bail in this Court and the same was dismissed as withdrawn by this Court on 18.8.2009 by passing the following order:- “Learned counsel for the petitioner states that he may be permitted to withdraw the present petition at this stage Dismissed as withdrawn at this stage”. On the same day vide Annexure P4, Criminal Misc. No. M-12255 of 2009 filed by the co-acused Raghbir Singh was allowed by this Court wherein it was observed as under:- “ The petitioner is not named in the FIR. The only allegations against the petitioner are that as per the statement of one Kashmir Singh recorded under Section 161 of Cr.P.C., the petitioner was noticed by him to be present at the spot and his driving licence as well as an unauthorized .315 bore double barrel pistol were recovered. It is not the case of the prosecution that this petitioner had caused any injury with this pistol. The trial is not likely to be concluded within a measurable distance of time.” Crl.Misc. No. M-26980 of 2009 (O&M) 5 Respondent No.2 moved another bail application on 21.8.2009 before the trial Court. The trial Court allowed bail application on 29.8.2009 (Anneure P6). The said order reads as under:- “Through this order I shall dispose of bail application under Section 439 of Cr.P.C. moved applicant Mangal Singh through his counsel Shri Sandeep Sharma and Shri S.S.Kathuria, Advocates. It is averred that co-accused of applicant namely Thana Singh son of Angrej Singh has already been granted bail by this Court vide order dated 29.5.2009; that his other co-accused Raghubir Singh son of Dharam Pal has granted bail by the High Court vide order dated 18.8.2009; that first bail application the present applicant was dismissed by the court of Sh. R.C.Dimri, Addl. Sessions Judge, Sirsa on 28.4.2009; that it is pertinent to mention here that the bail application moved by the present applicant in the Hon'ble High Court, was dismissed as withdrawn on 18.8.2009. It is further averred that the applicant has been falsely implicated in the present case due to enmity. No offence has been committed by him as alleged in the FIR. It is further averred that the applicant was only driving the jeep as per version given in the FIR, no specific injury or weapon has been attributed to the petitioner rather he has been shown as empty handed. Taking into consideration parity of the case of the applicant with the case of Thana Singh and Raghuvir Singh his co-accused, he may also be released on bail. 2. Notice of this application was given to the prosecution and reply of the same has been filed stating therein that accused/applicant should not be released on bail. In case he is released on bail then he Crl.Misc. No. M-26980 of 2009 (O&M) 6 will not appear in the court on hearing of this case, therefore, bail application of the applicant be dismissed . 3. Learned counsel for the applicant has argued that Thana Singh who was allegedly armed with sword, has already been granted bail and similarly Raghuvir Singh who was allegedly armed with country made pistol, has also been granted bail by the Hon'ble High Court. He further argued did not participate in the commission of offence and has been falsely implicated in the present case, therefore, he should be released on bail. 4. On the other hand learned Public Prosecutor has argued that the applicant is a dangerous type of person. In case he is released on bail then he will disturb the tranquility in the village and will not come present in the court on hearing of this case. Therefore, he should not be released on bail. 5. Taking into consideration that the applicant has been in custody since 1.11.2008 and the trial is likely to take long time and no active part has been played by the applicant in the commission of alleged offence as well as the party of the case of applicant with the case of Thana Singh and Raghuvir Singh who were allegedly armed with sword and country made pistol respectively at the time of committing this murder, therefore, I am of the considered view that it is a fit case in which the concession of bail should be given to the applicant and in that eventuality I accept present bail application. The applicant be released on bail on his furnishing bail bonds in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of this court.” Crl.Misc. No. M-26980 of 2009 (O&M) 7 A perusal of the above order reveals that it was very much in the knowledge of the Additional Sessions Judge that the bail petition filed by respondent No.2 had been dismissed as withdrawn by this Court on 18.8.2009 yet he allowed the bail application against the settled principles of law. The reasons given by the Additional Sessions Judge while allowing the bail are that the bail applicant was in custody since 1.11.2008 and the trial would take a long time and that no active part had been played by the bail applicant. It has been further observed by the Additional Sessions Judge that the case of the bail applicant was similar to that of Thana Singh and Raghbir Singh, who were allegedly, armed with a sword and country made pistol. So far as Thana Singh is concerned, his bail application was allowed by the trial Court vide order dated 29.5.2009 as only the presence of Thana Singh was alleged at the spot and no avert act was attributed to him. Raghbir Singh and respondent No.2 had filed two separate petitions before this Court and vide orders dated 18.8.2009, the petition filed by Raghbir Singh was allowed by this Court,whereas, the petition filed by respondent No.2 was dismissed as withdrawn by this Court. This implies that this Court was not inclined to grant bail to Mangal Singh and due to this reason counsel for Mangal Singh withdrew the petition . The fact that the petition filed by respondent No.2 had been dismissed as withdrawn on 18.8.2009 was very much in the knowledge of the Additional Sessions Judge and it was also in the knowledge of the Additional Sessions Judge and Raghbir Singh had been granted bail on 18.8.2009 by this Court. Both the orders were passed by the same Bench. Had the case of respondent No.2 been on a similar footing to that of Raghbir Singh, this Court would Crl.Misc. No. M-26980 of 2009 (O&M) 8 have allowed petition filed by Mangal Singh also. The Additional Sessions Judge proceeded to allow bail petition filed by respondent No.2 after about 11 days of its dismissal by this Court shows that the impugned order has been passed against the settled principles of law . It is not a case where the fact that bail application filed by respondent No.2 which was got dismissed as withdrawn from this Court was not in the knowledge of the Additional Sessions Judge. Merely because respondent No.2 has not misused the concession of bail in the facts and circumstances of the case would not be a ground to decline prayer for cancellation of bail. Since the impugned order has been passed against judicial discipline and settled principles of law, the same requires to be set aside. Accordingly, this petition is allowed. The impugned order dated 29.8.2009 passed by the Additional Sessions Judge (Annexure P6) whereby bail was granted to respondent No.2 is set aside. Respondent No.2 is directed to surrender before the trial Court forthwith for being taken in judicial custody. Let the comments of the Additional Sessions Judge be called as to under what circumstances, the impugned order was passed. ( Sabina ) Judge September 20, 2010 arya