Crl. Misc. No. M-5660 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-5660 of 2009 Date of decision : 25.5.2009 Pargat Singh ….. Petitioner Versus State of Punjab and others ….. Respondents Present: Mr. B.S. Bajwa, Advocate for the petitioner. Mr. Sudhir Nehra, Addl. A.G., Punjab. Mrs. G.K. Mann, Advocate for respondent No.5. **** S.S. SARON, J. The petitioner who is the complainant in case FIR No.107 dated 29.11.2008 (Annexure P1) registered at Police Station Ramdass, District Amritsar (Rural) for the offences under Sections 302, 201/34 Indian Penal Code (“IPC” – for short) seeks cancellation of bail that has been granted to Rattan Singh (respondent No.5) by the learned Judicial Magistrate, Ist Class, Ajnala in terms of Section 167 (2) of the Code of Criminal Procedure (“CrPC” – for short). The petitioner lodged the FIR (Annexure P.1) on the allegations that his sister Kamaljit Kaur (deceased) was married to the accused Rattan Singh (respondent No.5). There were differences between his sister (deceased) and his brother-in-law Rattan Singh (respondent No.5) in connection with their domestic affairs. Rattan Singh (respondent No.5) used to beat the sister of the complainant. One Jarnail Singh had thrice got a compromise effected between them. On the date of the incident i.e. on 29.11.2008 at about 5.00 p.m. Havaldar Mukthiar Singh who was Crl. Misc. No. M-5660 of 2009 -2- posted at Chowki Ramo Mahil and in relationship is an uncle of the complainant (petitioner), informed the complainant on mobile phone that Kamaljit Kaur had died due to consuming some poisonous substance. The complainant at that time was purchasing articles for his personal need at Jahajgarh, Amritsar. On receiving the information, the complainant informed his father at his home and also informed his elder sister Daljit Kaur on telephone. Then the complainant, Daljit Kaur, Rajbir Kaur and brother-in-law of the complainant namely Surjit Singh son of Gopal Singh got together at bus-stand Ramdass at about 7.00 p.m. There they came to know that Kamaljit Kaur was being cremated. When they reached the cremation ground they found that she had been cremated. Rattan Singh (respondent No.5) and some other persons were standing there. The complainant asked Rattan Singh (respondent No.5) as to why he had not informed them about the death of Kamaljit Kaur and why had she been cremated. To this, Rattan Singh (respondent No.5) said that they had done what they had to do. The complainant side were definite that Rattan Singh (respondent No.5), mother-in-law of Kamaljit Kaur (deceased) namely Deepo and her sister-in-law (Nanad) namely Narinder Kaur in connivance with each other had killed Kamaljit Kaur by administering some poisonous substance and thereafter had cremated her dead body. The complainant along with his sisters Daljit Kaur, Rajbir Kaur and brother-in-law Surjit Singh were going to inform the police when they met the police party at Talab Chowk Ramdass. The statement of the complainant was recorded by HC Nirmaljit Singh and was sent to the Police Station for registration of a case (FIR) against Rattan Singh (respondent No.5), Deepo and Narinder Kaur. On these allegations, the FIR (Annexure P1) was registered against the said accused for the offences under Sections 302, 201/34 IPC. The accused Rattan Singh (respondent No.5) was arrested in the case on 2.12.2008 and investigations were carried out. During investigation, samples of ashes and the bones of the deceased were taken from the cremation ground on 30.11.2008. These were deposited with the chemical examiner to Government of Punjab on 19.12.2008. During the course of Crl. Misc. No. M-5660 of 2009 -3- investigation, the petitioner apprehended that the police was going to exonerate the accused persons who were named in the FIR. Therefore, he filed a petition i.e. Criminal Misc. No. M-3167 of 2009 in this Court for issuance of directions to the concerned police authorities to expedite the investigation of the case and file a status report of the investigations. It was submitted that the SHO Police Station Ramdass District Amritsar (respondent No.3) was delaying the investigation of the case under the influence of Rattan Singh (respondent No.5). Notice of motion was issued in the said petition, which was disposed of vide order dated 18.2.2009 (Annexure P2). It was stated in the said petition by the learned counsel for the State on instructions from SI Kuldeep Singh that challan in the case was ready and would be presented within a week. In view of the said statement, the petition was dismissed as having been rendered infructuous. During investigations in the case an inquiry was also conducted by Sh. Tilak Raj, PPS, DSP, Sub-Division Ajnala. In the said inquiry, it was concluded by Sh. Tilak Raj, PPS, DSP, Ajnala that as per statement of Shere Punjab Singh son of the deceased Kamaljit Kaur, that she (Kamaljit Kaur) had suffered from an attack. Besides, Gurdeep Kaur @ Deepo and Narinder Kaur mother-in-law and sister-in-law (Nanad) respectively of deceased Kamaljit Kaur were found innocent. It was also held that the offence under Section 302 IPC was not made out and the offences under Sections 306 and 201 IPC only were made out against Rattan Singh (respondent No.5). Case diary No.18 dated 27.1.2009 was recorded in this regard. The challan in the case was prepared on 28.1.2009. Rattan Singh (respondent No.5) submitted an application for his release under Section 167 (2) CrPC which has been allowed by the learned Judicial Magistrate Ist Class vide impugned order dated 19.2.2009 (Annexure P3). It was observed that till the said date i.e. 19.2.2009, the challan had not been submitted though a period of more than 60 days was over. As such, Rattan Singh (respondent No.5) was ordered to be released on bail. On the next day i.e. 20.2.2009, the charge report (challan) Crl. Misc. No. M-5660 of 2009 -4- (Annexure P5) was filed. The order dated 19.2.2009 (Annexure P3), whereby Rattan Singh (respondent No.5) has been released on bail is assailed in this petition. Learned counsel appearing for the petitioner has submitted that Rattan Singh (respondent No.5) was arrested on 2.12.2008 for the offences under Sections 302 and 201/34 IPC. However, the offence under Section 302 IPC was reduced to that under Section 306 IPC without informing the complainant and thereafter, even though the challan was prepared on 28.1.2009, time was given to Rattan Singh (respondent No.5) to seek bail in terms of Section 167 (2) CrPC. Rattan Singh (respondent No.5) was granted bail by the learned Judicial Magistrate Ist Class, vide impugned order dated 19.2.2009 (Annexure P3) as the challan had not been filed and a period of 60 days had lapsed. Thereafter, on the next date, the challan (Annexure P5) was filed. It is submitted that the bail of Rattan Singh (respondent No.5) was stage managed. In response, learned counsel for the State has submitted that in the affidavit of Ranbir Singh PPS, DSP Sub-Divisional, Ajnala, it is stated that SI Kuldeep Singh of Police Station Ramdass Distt. Amritsar Rural who had come to assist the State counsel during the hearing of Crl. Misc. No.M-3167 of 2009 filed by the petitioner Pargat Singh seeking directions to expedite the investigation had verbally informed the State counsel appearing in the Court that the challan for the offences under Sections 306 and 201 IPC had been prepared and the same was being presented in Court within a week’s time. It is stated that thereafter the challan for the offences under Sections 306 and 201 IPC was filed in the Court of SDJM, Ajnala on 20.2.2009 only against Rattan Singh (respondent No.5). Learned counsel for respondent No.5 has vehemently opposed the prayer of the petitioner. Learned counsel has submitted copy of the order dated 30.4.2009 passed by the learned Additional Sessions Judge, Amritsar, whereby anticipatory bail has been granted to respondent No.5-Rattan Singh as the learned trial Court on 9.4.2009 had charge-sheeted Rattan Singh (respondent No.5) for the offences under Crl. Misc. No. M-5660 of 2009 -5- Sections 302 and 201 IPC. It is submitted that since charge had been framed against respondent No.5 for the offence under Section 302 IPC, respondent No.5 applied for anticipatory bail which has been allowed by the learned Additional Sessions Judge. Therefore, it is submitted that in view of the release of respondent No.5-Rattan Singh for non-filing of challan within the stipulated period of 60 days and after grant of anticipatory bail, the merits of the orders are not to be gone into and it is to be only seen whether there has been any misuse of the concession of bail by respondent No.5 and in the absence of there being no misuse of the concession, the bail that has been granted is not liable to be cancelled. It is also submitted that the petitioner was fully aware that the offence under Section 302 IPC had been converted to that under Section 306 IPC after inquiry was conducted by Sh. Tilak Raj, DSP, Ajnala on 22.1.2009. The DSP had found that the offence under Section 302 IPC was not made out and he recommended for filing the challan for the offences under Sections 306 and 201 IPC. Therefore, it is submitted that challan having not been presented within the prescribed period, respondent No.5 had a statutory right to be released on bail. In any case, respondent No.5 has been granted anticipatory bail by the learned Additional Sessions Judge, Amritsar vide order dated 30.4.2009. As such, the petition is liable to be dismissed. After giving my thoughtful consideration to the matter, it may be noticed that the factual position on record is that the incident occurred on 29.11.2008 on which date the FIR (Annexure P1) was registered. The samples of ashes and the bones of the deceased were taken from the cremation ground on 30.11.2008. These were deposited with the chemical examiner to Government of Punjab on 19.12.2008. Ratan Singh (respondent No.5) was arrested on 2.12.2008. From the date of arrest, the period of 60 days was to lapse on 31.1.2009. With respect to the occurrence, Sh. Tilak Raj, DSP, Sub Divisional, Ajnala had conducted an inquiry which he completed on 22.1.2009. It was concluded in the said enquiry that Gurdeep Kaur @ Deepo and Narinder Kaur mother-in-law and sister-in-law (Nanad) respectively of deceased Crl. Misc. No. M-5660 of 2009 -6- Kamaljit Kaur to be not involved in the incident. Besides, he found the offence under Section 302 IPC to be not made out and that under Section 306 IPC to be made out only against Rattan Singh (respondent No.5). Accordingly, the challan was prepared on 28.1.2009 for the offences under Sections 306 and 201 IPC against Rattan Singh (respondent No.5). The said challan in fact was liable to be immediately filed as the period of 60 days for filing the challan was about to lapse on 31.1.2009. However, it was not filed upto 20.2.2009. In any case, neither party was informed that the challan had been prepared for the offence under Section 306 IPC and not under Section 302 IPC. Had Rattan Singh (respondent No.5) been informed about this, he would have immediately after 31.1.2009 when the period of 60 days detention had lapsed filed an application for his release in terms of Section 167 (2) CrPC. It appears that the police authorities did not disclose about the offence under Section 302 IPC being reduced to that under Section 306 IPC in view of the pendency of the earlier petition i.e. Crl. Misc. No. M-3167 of 2009 filed by Pargat Singh (petitioner) seeking issuance of appropriate directions to the police authorities to expedite the investigation in the case. The said petition was listed for hearing in this Court on 18.2.2009 and it was stated by learned counsel for the State who was assisted by SI Kuldeep Singh that the challan was ready in the case and would be presented within a week. In view of the said submission, learned counsel for the petitioner had submitted that the petition had been rendered infructuous. Accordingly, the said petition was dismissed as having been rendered infructuous on 18.2.2009. The stand that learned counsel for the State was verbally informed by SI Kuldeep Singh that challan had been prepared for the offence under Section 306 IPC, is not discernible from the record. The same appears to be only a cover-up by the police authorities for their failure to disclose that the challan had been prepared by converting the offence under Section 302 IPC to that under Section 306 IPC. It may also be possible that the police had advised Rattan Singh (respondent No.5) not to take any steps for his release on bail till the earlier petition i.e. Crl. Misc. No. M-3167 of 2009 filed by Crl. Misc. No. M-5660 of 2009 -7- Pragat Singh (petitioner) is disposed of. It is after the said petition was dismissed as infructuous on 18.2.2009 that Rattan Singh (respondent No.5) filed an application for his release under Section 167 (2) CrPC on the very next day i.e. on 19.2.2009, which has been allowed vide order dated 19.2.2009 (Annexure P3) passed by the learned Judicial Magistrate Ist Class, Ajnala. Then on the very next day i.e. on 20.2.2009, the charge report (challan) (Annexure P5) was filed for the offences under Sections 306 and 201 IPC. After filing of challan, the learned Additional Sessions Judge has vide order dated 9.4.2009 framed charges for the offences under Sections 302 and 201 IPC. At present the case is pending trial and was listed for hearing on 21.5.2009 and Rattan Singh (respondent No.5) is being tried for the offences under Sections 302 and 201 IPC. Therefore, it is quite evident that on the basis of material and evidence on record, the offence under Section 302 IPC is prima facie found to have been committed by Rattan Singh (respondent No.5). and it is for this reason that charge has been framed for the said offence. As such, it is quite possible that the offence under Section 302 IPC was deliberataly reduced to that under Section 306 IPC and thereafter the challan was not filed within a period of 60 days so as to enable Rattan Singh (respondent No.5) to get bail in view of the statutory provisions of Section 167 (2) CrPC. It may also be noticed that after charge had been framed on 9.4.2009 including that for the offence under Section 302 IPC against Rattan Singh (respondent No.5), he filed an application seeking grant of anticipatory bail before the Sessions Court at Amritsar for the said offence under Section 302 IPC and the learned Additional Sessions Judge, Amritsar before whom the trial in the case is pending, allowed anticipatory bail to him vide order dated 30.4.2009. It was observed in the said order that Rattan Singh (respondent No.5) had approached the Ilaqa Magistrate in terms of Section 167 (2) CrPC for his release on bail which was allowed holding that challan had not been presented within 60 days. It was also observed that charge had been framed against Rattan Singh (respondent No.5) for the offence under Section 302 IPC. Rattan Singh (respondent No.5) had submitted that Crl. Misc. No. M-5660 of 2009 -8- regular bail was granted for the offence under Section 306 IPC. Therefore, his application for bail under Section 438 CrPC for the offence under Section 302 IPC be allowed. The said contention was not opposed by learned Additional PP for the State. Accordingly, it was observed by the learned Additional Sessions Judge, Amritsar after considering the facts and circumstances of the case that the investigation had already been completed and custodial interrogation of the accused (respondent No.5) was not required. As such, no useful purpose, it was observed, would be served by sending him to custody. In the said circumstances, the anticipatory bail application filed by respondent No.5 was allowed. Therefore, the learned Additional Sessions Judge, Amritsar granted anticipatory bail to Rattan Singh (respondent No.5) on the premise that investigation in the case had been completed and that respondent No.5 was not wanted for custodial interrogation. However, the manner in which the initial bail in terms of Section 167(2) Cr.PC that was granted to Rattan Singh (respondent No.5) was quite inappropriate inasmuchas the offence from that under Section 302 IPC was reduced to under Section 306 IPC and then the filing of the challan was delayed to a date beyond 31.1.2009 so that the period of 60 days expired. This was despite the fact that the challan was prepared on 28.1.2009. Besides, the said facts and circumstances were not brought to the notice of the learned Additional Sessions Judge at the time of passing the order dated 30.4.2009 granting anticipatory bail to respondent No.5. The question, therefore, arises as to whether the merits of the order granting bail can be gone into or the bail that has been granted can only be cancelled in case of misuse of the concession. In Brij Nandan Jaiswal v. Munna @ Munna Jaiswal and another, 2009 (1) RCR (Crl.) 529 (SC) it was held by the Supreme Court that the complainant can challenge an order granting bail on merits. Besides, it is not as if once a bail is granted by any court, the only way to get it cancelled is on account of its misuse. The bail order can be tested on merits also. In the said case, bail was granted in a murder case without considering the pros and cons of the matter. It was observed while Crl. Misc. No. M-5660 of 2009 -9- granting bail, particularly in serious cases like murder, some reasons justifying the grant are necessary. The order granting the bail was set aside with the direction to re- decide the matter. Therefore, it is not as if the merit of the order granting bail cannot be gone into particularly when it is shown that the proceedings have been manipulated in a manner to favour the accused by reducing the offence under Section 302 IPC to that under Section 306 IPC and waiting for a period of 60 days for filing the challan to lapse, even though the challan has been prepared earlier to the expiry of the bail. In Rajnikant Jivanlal Patel and another v. Intelligence Officer, Narcotic Control Bureau, New Delhi, AIR 1990 SC 71, it was observed that an order for release on bail under proviso (a) to Section 167(2) Cr.PC may appropriately be termed as an order-on-default. Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not Court’s discretion. If the investigating agency fails to file charge- sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. The accused cannot therefore, claim any special right to remain on bail. It was, however, further observed that if the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled. Therefore, even if an accused is released on account of the default in the prosecution in not filing its chargesheet (challan) within 60/90 days, as the case may be the bail granted can be cancelled if it is shown that the prosecution has acted in an irregular manner so as to give un due advantage to an accused. This, however, would depend on the facts and circumstances of each case. The rule though is that a bail that has been granted is not normally to be cancelled as indeed Crl. Misc. No. M-5660 of 2009 -10- cancellation of bail is a harsh order, which affects the liberty of an individual who has been granted bail. Therefore, an order cancelling a bail is not to be resorted to or lightly passed and generally even merits of the order granting bail are not to be gone into. However, for maintaining the confidence of the judicial system it is equally true that an accused should not get bail on the basis of record which is prepared by the Police with a view to give unfair advantage to an accused. This Court in the case of Rajinder Singh v. State of Haryana, 1998 (4) RCR (Criminal) 663 cancelled the bail where the victim had sustained fracture and was in hospital, but the Investigating Officer wrongly stated that the victim was discharged and then prompted the judge to grant bail. It was held that the bail was made by misrepresentation and the SSP was asked to hold an inquiry against the Investigating Officer. Similarly, in Jagroop Singh v. State of Punjab, 1998 (2) RCR (Criminal) 697, this Court cancelled the bail which was obtained by misrepresentation of facts and fabricating the FIR. It was observed that this was a ground to cancel the bail even though the accused was no longer required by the police. Continuation of such an order, it was observed, shakes the very faith in the system. In the facts and circumstances of the present case even though the charge report (challan) was prepared on 28.1.2009 and the period of 60 days for filing it was to expire on 31.1.2009, the same was not filed till Crl. Misc. No. M-3167 of 2009 was disposed of by this Court on 18.2.2009. The FIR had been registered for the offence under Section 302 IPC which was reduced to that under Section 306 IPC and this fact was not disclosed by the police and a cover up has been pleaded that it was verbally disclosed to the State counsel at the time of hearing of Crl. Misc. No. M-3167 of 2009 which was dismissed as infructuous on 18.2.2009. On the next day i.e. on 19.2.2009, the respondent No. 5 filed an application for release on bail in terms of Section 167(2) Cr.PC which was allowed vide order dated 19.2.2009 (Annexure P-3). Thereafter, on the next day i.e. on 20.2.2009 the challan (Annexure P-5) was filed for the offences under under Section 306 and 201 IPC it had in fact Crl. Misc. No. M-5660 of 2009 -11- been prepared on 28.1.2009. The accused Rattan Singh (respondent No.5) was, however, on the basis of evidence and material on record, chargesheeted for the offence under Section 302 IPC on 9.4.2009. Thereafter, Rattan Singh (respondent No.5) filed an application for anticipatory bail which has been allowed by the learned Additional Sessions Judge on 30.4.2009. In the facts and circumstances, the order dated 19.2.2009 (Annexure P3) passed by the learned Judicial Magistrate, Ajnala and the order dated 30.4.2009 granting anticipatory bail to Rattan Singh (respondent No.5) which is based on the order dated 19.2.2009 (Annexure P.3) are liable to be cancelled. Accordingly, the Crl. Misc. petition is allowed and the order dated 19.2.2009 (Annexure P3) ordering release of Rattan Singh (respondent No. 5) and the order dated 30.4.2009 granting anticipatory bail to him are set aside and the bails granted to him are cancelled. Rattan Singh (respondent No.5) shall surrender and be taken into custody and in case he surrenders within five days of receipt of copy of the order and applies for bail, his application for regular bail shall be considered by the learned trial Court on merit within 5 days thereafter. In any case the learned trial Court while considering the application for regular bail shall consider the same on the basis of evidence and material on record and uninfluenced by any observation made in this order. (S.S. SARON) JUDGE May 25, 2009 amit