IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No.926 of 2007 Reserved on: 18.03.2008. Decided on: March 26, 2008. Mool Chand Dhingra …Petitioner. VERSUS State of H.P. & Ors. ….Respondents. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr Amit Kumar, Advocate. For the respondents: Mr A.K.Bansal, Addl.A.G. for respondent No.1. Mr Vinay Thakur, Advocate for respondents No.2 and 3. Kuldip Singh, Judge This petition has been filed under Section 439(2) read with Section 482 Cr.P.C. for setting aside order dated 30.11.2007 passed by learned Judicial Magistrate 1st Class, Solan in case No.87/22/2007 titled as Yoginder Kumar versus State. Notice was issued to the respondents. Respondent No.1 has filed reply. Respondents No.2 and 3 have also filed joint reply. 2. The case, in brief, is that on the complaint of petitioner / complainant, F.I.R. No.229 was registered at Police Station, Sadar, Solan on 7.9.2007 under Sections 365 read with Section 34 IPC alleging disappearance of Ramesh alias Meshu, brother of the Whether the reporters of the local papers may be allowed to see the judgment? Yes …2… petitioner since 13/14.8.2007 from Hotel Utsav, Solan. In the F.I.R. the petitioner has named respondents No.2 and 3 as prime suspects and responsible for disappearance of his brother. The respondents No.2 and 3 were arrested on 29.11.2007 but they were enlarged on bail on 30.11.2007 by learned Judicial Magistrate 1st Class, Solan. The petitioner has assailed the order dated 30.11.2007 for granting bail to respondents No.2 and 3. He has also prayed for cancellation of bail of respondents No.2 and 3. 3. It has been alleged that after 12 days of the registration of F.I.R., two police personnel came from Police Station, Sadar, Solan to Sonepat and they returned to Solan without contacting respondents No.2 and 3, who successfully evaded their arrest. The police from Solan again a week thereafter visited Sonepat but without any result. 4. In the meantime, after about 10 days, K.C.Sidhar, younger brother of petitioner, received a telephone call from Police Station, Sadar, Solan and he was asked to come to Solan. He accordingly went to Solan and came to know that respondent No.2 appeared before the Investigating Officer and respondent No.3 also visited Police Station in his presence. The Investigating Officer did not take respondents No.2 and 3 in custody for custodial interrogation. The Investigating Officer informed K.C.Sidhar that respondent No.3 has told that Ramesh alias Meshu is probably at Muzaffar Nagar. The police team reached Muzaffar Nagar and made some empty formalities on the basis of alleged information given by respondents No.2 and 3 and later on let off respondents No.2 and 3. …3… 5. Respondents No.2 and 3 have criminal record and are responsible for the disappearance of Ramesh alias Meshu. Respondents No.2 and 3 have given wrong vehicle number in the Register of the Hotel where they checked in on 13.8.2007, this creates suspicion. The respondents No.2 and 3 have allegedly admitted that they had altercation with the brother of the petitioner in the night on 13.8.2007. The petitioner made a representation to the Director General of Police, Himachal Pradesh and other police officers. 6. In the application, seeking police remand, to the Magistrate it was alleged by the prosecution that respondents No.2 and 3 were not disclosing anything about the disappearance of the brother of petitioner. On 29.11.2007, the learned Magistrate remanded respondents No.2 and 3 to police custody for one day but released them on bail on 30.11.2007. The bail order dated 30.11.2007 is wrong and illegal. The learned Magistrate has not appreciated that there is sufficient material linking respondents No.2 and 3 with the commission of offence. The learned Magistrate has not appreciated the criminal background of respondents No.2 and 3 while releasing them on bail. The respondents No.2 and 3 are likely to destroy the evidence. The learned Magistrate has not appreciated that custodial interrogation of respondents No.2 and 3 would have led to discovery of evidence connecting respondents No.2 and 3 with the disappearance of brother of the petitioner. The learned Magistrate has considered irrelevant and unnecessary material for releasing respondents No.2 and 3 on bail. The bail order suffers from complete …4… non application of mind and the same is contrary to law and facts on record. Respondents No.2 and 3 are not entitled to bail. Respondents No.2 and 3 in violation of bail order have left the jurisdiction of District Solan and stayed at Sonepat. The petitioner apprehends threat to his life and to his family members. 7. Respondent No.1 has filed reply. In the reply, it has been submitted that respondents No.2 and 3 were arrested on 29.11.2007. They were produced before the learned Magistrate who ordered one day police custody of respondents No.2 and 3 and respondents No.2 and 3 were released on bail by learned Magistrate on 30.11.2007. It has been alleged that Ramesh alias Meshu was lastly seen at Dhaba of Virender Malik, resident of village and Post Office, Peena, Tehsil, Police Station and District, Muzaffar Nagar. The petitioner was associated with the investigation on 9.10.2007 and 10.10.2007. Ramesh alias Meshu, respondents No.2 and 3 consumed liquor on 13.8.2007 in Hotel Utsav at Solan. Respondents No.2 and 3 were with the police w.e.f. 7.9.2007 and they were arrested on suspicion on 29.11.2007 but released on bail on 30.11.2007. K.C.Sidhar, brother of the petitioner, came to Police Station, Solan on 6.10.2007. The respondents No.2 and 3 also came to Police Station, on 7.10.2007 and joined the investigation. During the course of investigation, it had come that missing person was at Muzaffar Nagar. On 10.10.2007 Smt.Sudesh wife of Kirat Pal had also stated that the person whose photographs were shown to her was seen at Lalu Kheri and he asked meals from her. In the reply, it has been stated that it has come in investigation that Ramesh alias …5… Meshu was torturing the accused persons and accused persons had given 3 – 4 slaps to him. The accused are involved in criminal activities of gambling and betting. 8. Respondents No.2 and 3 in their reply have submitted that petitioner has no locus standi to maintain the present petition. It has been submitted that they have co-operated with the police during investigation. They have denied the allegations of the petitioner. 9. I have heard learned counsel for the parties and gone through the record. The learned counsel for the petitioner has submitted that petitioner is the complainant of F.I.R. No.229/2007 registered at Police Station, Sadar, Solan, therefore, he has locus standi to assail the order of grant of bail dated 30.11.2007 whereby respondents No.2 and 3 have been released on bail by the learned Magistrate. He has also submitted that petitioner is the brother of the missing person. Learned counsel for the petitioner has cited R.Rathinam versus State and another, (2000) 2 SCC 391, wherein after noticing Section 439(2) of the Code of Criminal Procedure, 1973 the Supreme Court has held that there is nothing to indicate that the said power can be exercised only if the state or Investigating Agency or even a Public Prosecutor moves for it by a petition. There is no barrier either in Section 439 of the Code or any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. In Upendra Kumar Sahoo versus Giridhari Sahu and others, 1996 (4) Crimes 331, it has been held that the jurisdiction of Sessions Judge or High Court under Section 439(2) of the Act is very wide and attention of the Court seeking cancellation of …6… bail of accused person can be drawn by the State as well as by the informant. In the present case, petitioner is the informant, therefore, he has locus standi to file the petition. 10. The learned Magistrate gave police custody of respondents No.2 and 3 on 29.11.2007 for one day, they were ordered to be produced on 30.11.2007 at 4 p.m. and the bail application of the respondents No.2 and 3 was kept pending till 30.11.2007. On 30.11.2007 the police requested for remand of respondents No.2 and 3 for further two days. The learned Magistrate in the order dated 30.11.2007 has observed that the accused persons are with the police w.e.f. 7.9.2007 and they were arrested on 29.11.2007. The Investigating Officer made no complaint to the learned Magistrate that the accused persons are not associating in the investigation. In the reply filed by respondent No.1, it has been stated that Yoginder alias Raju and Kapil Sethi were with the police w.e.f. 7.9.2007 and they were arrested on 29.11.2007. It means the police had sufficient long time to interrogate respondents No.2 and 3. It has also come in the reply of respondent No.1 that on 9.10.2007 police party went to Muzaffar Nagar with the petitioner and the photographs of missing person Ramesh were shown to Dhaba owner and his workers. On 10.10.2007, one Smt.Sudesh informed the Investigating Agency that she had seen the person shown in photograph at Lalu Kheri and he was asking meals from her. The question before this Court is with respect to the grant of bail by the learned Magistrate. The respondents No.2 and 3 were released on bail by the learned Magistrate on the following conditions:- …7… i) that the accused shall furnish their bonds for a sum of Rs.50,000 each with one local surety each of the like amount; ii) that the accused persons shall join investigation immediately hereinafter; iii) That the accused persons shall not leave jurisdiction of District Solan, unless the investigation is complete; and iv) That the accused persons shall not make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or police. In the petition, it has been alleged that respondents No.2 and 3 have violated the conditions of the bail order on the ground that respondents No.2 and 3 have left the jurisdiction of Solan District and stayed at Sonepat. No other violation of bail order has been pointed out. The condition No.(iii) in the bail order is that accused persons shall not leave the jurisdiction of District Solan unless the investigation is complete. There is no allegation in the complaint that respondents No.2 and 3 left the jurisdiction of District Solan during the investigation of the case. On 24.1.2008, a direction was given by this Court to police authorities that they should record the attendance of the accused persons every day for which the record will be maintained by them. It has been submitted by the learned counsel for respondents No.2 and 3 that respondents No.2 and 3 are complying with the order dated 24.1.2008 of this Court which has not been contradicted by the learned counsel for the petitioner. …8… 11. In Rizwan Akbar Hussain Syyed versus Mehmood Hussain and another, 2007 (7) SCALE 377, the Apex Court has held that where it appears to the superior Court that the Court granting bail acted on irrelevant materials or there was non- application of mind or where Court does not take note of any statutory bar to grant of bail, order for cancellation of bail can be made. In Dolat Ram and others versus State of Haryana, (1995) 1 SCC 349, the Supreme Court has held that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. There is no cogent material on record to show that after the grant of bail by the learned Magistrate to respondents No.2 and 3 they have misused the liberty. The learned trial Magistrate has released respondents No.2 …9… and 3 on bail after taking into consideration the facts and circumstances of the case. No statutory bar for granting bail to respondents No.2 and 3 has been pointed out. The Investigating officer at the time of consideration of bail application of respondents No.2 and 3 by learned Magistrate had not contended that respondents No.2 and 3 had not joined the investigation and this fact has been noticed by the learned Magistrate in the bail order. The petitioner has failed to make out any case for setting aside order dated 30.11.2007 and cancellation of bail granted to respondents No.2 and 3. No other point was urged. 12. As a result, the petition is dismissed. March 26, 2008 ( Kuldip Singh ), J. (soni)