CHANDAN SINGH v. YASHVINDER CHAUHAN — 1993 DIGILAW 548 (DEL)

Anil Dev Singh ( 1 ) BY this petition moved under Section 439 (2)read with Section 482 of the Code of Criminal Procedure, the petitionerseeks cancellation of bail granted to the respondent by the order of thelearned Additional Sessions Judge dated 12/05/1993. ( 2 ) THE prosecution story is that on 10/01/1993 the accusednamely. Mange Ram, Yashvinder Singh and Mohinder Singh committedthe murder of Ravinder @ Tiger, resident of Village Devali by inflicting injuries on his person with hockey sticks and a Hathi. ( 3 ) ON January 11, 1. 993, body of the deceased Ravinder alias Tigerwas found in an open plot located in Sangam Vihar. On the same day thestatements of two parsons, namely. Sham Singh and Raj Dhan, were recorded by thi police under Section 161 of the Code of Criminal Procedure,according to which they allegedly saw the deceased in the company of theaccused on January 10, 19)3 at about 7. 00 p. m. Besides the statements ofsham Singh and Raj Dhan, it is claimed that the statement of one Sompal, was also recorded by the police on January 11, 1993 itself. Accordingto this statement Mange Ram is alleged to have made an extra judicialconfession before Som Pal, admitting the commission of the offence by allthe three accused persons. The accused are said to have absconded afterthe incident and on being apprehended on 14/01/1993 Yashvinderand Mohinder made disclosure statements leading to the discovery of bloodstained hockey sticks on 17/01/1993 from the fields located inghaziabad. The alleged motive for the murder of the deceased is said tobe a long standing enmity between the parties, nurtured by prolongedlitigation between them. ( 4 ) ON being moved under Section 439 of the Code of Criminalprocedure by the respondent, the learned Additional Sessions Judge, granted bail to him. While so doing the learned Additional Sessions Judge tooknote of the plea of the co-accused that be was unable to flex his wrist because of an injury sustained by him six months back and for this reasonit would not be possible for him to wield a hockey stick. He also notedthat it was a case of circumstantial evidence. While so doing the learned Additional Sessions Judge tooknote of the plea of the co-accused that be was unable to flex his wrist because of an injury sustained by him six months back and for this reasonit would not be possible for him to wield a hockey stick. He also notedthat it was a case of circumstantial evidence. ( 5 ) SHRI Singh, learned Counsel appearing for the petitioner submitsthat the learned Additional Sessions Judge was not right in releasing theaccused on bail in view of the nature and gravity of the offence alleged tohave been committed by them, the material collected by the investigatingagency and reasonable apprehension of the witnesses being tempered withby the accused. According to him, the material collected during the investigation, including the statement of Sompal regarding the extra judicial confession of the accused Mange Ram and the statements of Sham Singh andrajdhan regarding the fact that the deceased was last seen alive in thecompany of the accused, was enough to throw out the bail application ofthe respondent. While drawing my attention to the CFSL report it isasserted by the learned Counsel that the report unmistakably connectsaccused with the crime as both the hockey sticks, the alleged weapons ofoffence, discovered at the instance of the accused persons namely, Mahinderand Yashvinder, were found smeared with human blood of group a whichcorresponded to the blood of the deceased. It is the contention of thelearned Counsel that the witnesses namely, Chandan Singh and Som Palsingh have been threatened by the accused persons and therefore they donot deserve the freedom granted to them by the learned Additional Sessionsjudge. Learned Counsel further submits that when the accused has misutilised the liberty granted to him, his bail should be cancelled, Shri Singhasserts that litigation was going on between the parties and the accused hada very strong motive to commit the crime. Learned Counsel also points outthat after the incident the accused absconded and could not be apprehendeduntil 14/01/1993. This conduct according to the learned Counsel isrelevant under Section 8 of the Evidence Act. Learned Counsel contendsthat the circumstantial evidence is complete with all the links firmly inposition and is incompatible with the innocence of the accused. Learned Counsel also points outthat after the incident the accused absconded and could not be apprehendeduntil 14/01/1993. This conduct according to the learned Counsel isrelevant under Section 8 of the Evidence Act. Learned Counsel contendsthat the circumstantial evidence is complete with all the links firmly inposition and is incompatible with the innocence of the accused. In nutshellhis submission is that the following material would indicate that the caseagainst the accused, is a fool proof one; (1) the deceased was last seen alivein the company of the accused; (2) extra judicial confession of Mange Ram,admitting the murder of Ravinder by all the three accused; (3) disclosurestatements made by accused persons leading to the discovery of the weaponsof offence: (4) motive; (5) report of the CFSL; (6) conduct of the accusedpersons after the crime and on their release on bail. ( 6 ) ON the other hand Shri Lalit, learned Senior Advocate, appearing for the respondent submits: ( 7 ) THAT the order of the learned Additional Sessions Judge grantingbail to the respondent does not call for any interference as the exercise ofdiscretion was based on sound and proper principles of law; that the chainof events relied upon by the petitioner does not link the accused with theoffence and that they do not point to their guilt; that Mohinder accused atthe time of the incident was not able to wield the weapon of offence according to the report of the jail doctor dated 27/04/1993 and that the allegedextra judicial confession and the story that the deceased was last seen alivein the company of the accused on 10/01/1993 does not inspire anyconfidence. ( 8 ) CONTINUING his arguments Shri Lalit submits that in so far as thematter of alleged extra judicial confession is concerned, the circumstances inwhich the same is said to have been made by the accused Mange Rambefore Som Pal shows that the allegation is a far fetched one. He furthersubmits that Mange Ram is alleged to have told Som Pal that he wanted tosell his jeep because he required money for engaging a Counsel to defendhim in connection with the murder of Ravinder, which all the three accusedhad committed. It is the contention of the learned Counsel that it wasunlikely that Mange Ram would have made such a statement as -the objectwas to sell the jeep to secure the maximum price for the same. It is the contention of the learned Counsel that it wasunlikely that Mange Ram would have made such a statement as -the objectwas to sell the jeep to secure the maximum price for the same. He alsourges that it was not likely that any person, who commits a murder wouldconfess his guilt to a mere acquaintance and that too when the latter happens to work for a close relative of the deceased. As regards the allegationthat the deceased was seen alive in the company of the accused is concerned,the learned Counsel points out that the death of Ravinder, according to thepost mortem report must have taken place around 11 p. m. on 10/01/1993 while the deceased was allegedly seen in the company of the accusedat 7. 00 p. m. in the evening. It is the submission of learned Counsel that thegap between the time of death of Ravinder and the time when Sham Singhand Raj Dhan allegedly saw the deceased in the company of the accused isconsiderable and this circumstance does not connect the accused with themurder of the deceased. He submits that the locality where the body ofthe deceased was found is densely populated and anybody could have murdered the deceased. In so far as the disclosure statements leading to thediscovery of the weapons of offence are concerned, learned Counsel arguesthat the witnesses to the same are not independent. Braham Parkash andramesh, the two so called independent Panchs are relatedto Chandansingh, a close relative of the deceased. In this regard he has drawn myattention to the genelogical table which has been placed on record by therespondent. Learned Counsel submits that while disclosure statements aresaid to have been made on 14/01/1993 by Yashvinder and Mahinderthe recovery of the weapons of offence at the instance of the two accusedhas been made after three days i. e. , on 17/01/1993. Learned Counselsuggests that in the circumstances weapons of offence were planted by someone at the places from where they were allegedly discovered. With regardto the CFSL report, it is asserted that since the disclosure statements andthe discovery pursuant thereto do not inspire any confidence, the CFSLreport is of no consequence whatsoever. Regarding the threats which havebeen allegedly extended to the witnesses by the accused persons is concernedlearned Counsel says that these allegations have been coined to create prejudice against the respondents and to manufacture grounds for seeking cancellation of their bails. Regarding the threats which havebeen allegedly extended to the witnesses by the accused persons is concernedlearned Counsel says that these allegations have been coined to create prejudice against the respondents and to manufacture grounds for seeking cancellation of their bails. He maintains that on 6/05/1993 at 9 a. m. , whenmahinder is alleged to have extended the threat to Chandan Singh, hisclient was not in Delhi and was attending a marriage ceremony of a closerelative at village Kanavni. Finally learned Counsel submits that the rejection of bail stands on one footing while the cancellation of bail stands onanother, as the latter interferes with the liberty of an individual and cannotbe resorted to except in exceptional cases. He submits that the considerations in both the situations are different. According to the learned Counselbail once granted can be cancelled only if the accused try to flee fromjustice or if they tamper with evidence. The learned Counsel urges thatboth the conditions for cancellation of bail in the present case are absent. In support of his arguments, he has cited decisions of the Supreme Court inaslam Babalal Desal v. State of Maharashtra, (1992) 4 SCC 272, Bhagirathsingh v. State of Gujarat, (1984) I SCC 284 and State (Delhi Administration)v. Sanjay Gandhi, (1978) 2 SCC 411 . ( 9 ) I have considered the respective submission of learned Counselfor the parties. ( 10 ) I will first take up the submission of the learned Counsel for therespondent that bail once granted by the Court of Session. can be cancelledby the High Court only on fulfilment of at least one of the two conditions,namely, that there should be a likelihood of the accused fleeing from justiceand reasonable apprehension of the accused witnesses being tempered with. Recently I had an occasion to deal with the same proposition in Jayanttprasad Goel v. Smt. Sumitra Jain and Others, Cr. M (M) 1300 of 1992 decidedon 10/09/1993 where the accused had been granted bail by theadditional Sessions Judge and the complainant moved for its cancellation. This was a case where a young bride, six months pregnant, had died of burninjuries in the matrimonial home and it was alleged that she was the secondvictim of the gory crime, the first one whose place she came to fill as abride had also died of burn injuries. This was a case where a young bride, six months pregnant, had died of burninjuries in the matrimonial home and it was alleged that she was the secondvictim of the gory crime, the first one whose place she came to fill as abride had also died of burn injuries. This is how the matter was dealt withto find an answer to the aforesaid proposition :- "section 439 of the Code of Criminal Procedure confersconcurrent powers on the High Court and the Court of Session forgranting bail. The power however, has to be exercised in thelight of the provisions of Section 437 of the Code of Criminalprocedure. Besides, both the High Court and the Court of Sessionunder Section 439 (2) have been conferred with power to directany person, who has been released on bail, to be arrested andcommitted to custody. This power to commit a person to custodyafter being enlarged on bail has to be exercised with care andcircumspection as it involves the liberty of a person. But this doesnot mean that even in appropriate cases the power cannot be exercised. Rather the power must be exercised if the ends of justicedemand exercise of the same. In a case where a Court of Sessionhas granted bail, the State can straightaway move the High Courtfor cancellation of the bail without approaching the Court ofsession in this regard. This follows the superior position of thehigh Court vis-a-vis the Court of Session. The exercise of powerby the High Court under Section 439 (2) of the Code of Criminalprocedure, however, will depend upon the facts and circumstancesof each case and there cannot be a strait jacket formula in regardto the considerations, which prevail with the High Court forcancellation of bail granted by a Court of Session. In The State v. Jaspal Singh Gill, AIR 1984 S. C. I 503, theorder of the High Court granting bail was set aside by the Supremecourt having regard to the gravity of the offence with which theaccused was charged. In The State v. Jaspal Singh Gill, AIR 1984 S. C. I 503, theorder of the High Court granting bail was set aside by the Supremecourt having regard to the gravity of the offence with which theaccused was charged. While cancelling the bail of the accusedgranted by the High Court, the Supreme Court observed asfollows: - "on a consideration of the above three decisions, I amof the view that the Court before granting bail in cases involving non-bailable offences particularly where the trial has notyet commenced should take into consideration various matterssuch as the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to theaccused, a reasonable possibility of the presence of the accusednot being secured at the trial, reasonable apprehension ofwitnesses being tampered with, the larger interests of thepublic of the State and similar other considerations. On going through the order passed by the High Court, Ifeel that its decision that the material collected by the prosecution and the evidence to be adduced at the trial would not besufficient to sustain a conviction appears to be premature onein the circumstances of this case. Since the trial is yet tobegin, I do not propose to say anything more at this stage lestit should prejudice either the accused or the prosecution thanobserving that on a perusal of the complaint and the othermaterial available in the case. it cannot reasonably he statedthat the prosecution case against the respondent is such thatit can be thrown out at the threshold. It appears, that a primafacie case is made out against the respondent. The gravity ofthe offences is quite obvious. "in H. C. Gaur v. Pakesh Vij and Another, 1990 (1) CC Cases461, this Court while dealing with asimilar proposition held asfollows :- "the contention canvassed by Mr. Sood that unless thereare such considerations as apprehension about accused rotremaining available for trial, cr his tamperirg with evidence orintimidating the witnesses; the Court should not entertain petition for cancellation of bail, particularly when moved by thecomplainant apparently out of vendetta, than as a matter ofgenuine grievance, cannot be wholly accepted for it has beenheld in the case of Gurcharan Singh (supra) that nature andseriousness of the offence is also one of the relevant considerations. There are other cases, namely, (1) State v. Captainjagjit Singh, AIR 1962 S. C. 253, and (2) State v. Jaspal Singhgill, AIR 1984 S. C. 1503, where orders of the High Courtgranting bail to the accused were set aside, considering thegravity of the offence with which the accused therein werecharged. The decision relied upon by Mr. Sood, reported asbhagirath Singh Judeja v. State of Gujarat, 1984 Cr. L. J. 160with all respects, does not lay down any general principles asit is manifest that their Lordships of the Supreme Court didnot approve the order passed by the High Court in cancellingbail, in view of the observations made in that order takinginto consideration status of the victim of the incident, andsuch extraneous factors as place of incident being inside premises of a hospital and other allied circumstances. Thisjudgment does not take note of the judgment in the case ofgurcharan Singh (supra) to the effect that in suitable cases, thesuperior Court can examine the propriety of an order ofgranting bail and interfere accordingly and that the nature andseriousness of the offence, as also other facts and circumstancesof the case are relevant factors for consideration, nor that ofthe earlier decision in the case of Captain Jagjit Singh (supra ). "again in Gurcharan Singh and Others v. State (Delhi Administration), AIR 1978 S. C. 179 the Supreme Court held asfollows:- "the only question which the Sessions Judge was required to consider at that stage was whether there was prima faciecase made out, as alleged, on the statements of the witnessesand on other materials. There appeared at least nothing atthat stage against the statement of A. S. I. Gopal Das who badmade no earlier contradictory statement. "the taint of unreliability" could not be attached to his statement even for thereason given by the learned Sessions Judge. Whether hisevidence will ultimately be held to be trustworthy will be anissue at the stage of trial. In considering the question of bailof an accused in a non-bailable offence punishable with deathor imprisonment for life, it is necessary for the Court to consider whether the evidence disclosesa prima fade case towarrant his detention in jail besides the other relevant factorsreferred TO to above. "at another place the Court observed that there cannot bean inexorable formula in the matter of granting bail and the factsand circumstances of each case will govern the exercise of judicialdiscretion in granting or cancelling bail. "at another place the Court observed that there cannot bean inexorable formula in the matter of granting bail and the factsand circumstances of each case will govern the exercise of judicialdiscretion in granting or cancelling bail. In Bhagirath Singh (supra)the Supreme Court, with respect, cannot be said to have departedfrom the principle laid down in State v. Jaspal Singh Gill, (supra ). As pointed out in the case of Gurcharan Singh (supra), the factsand circumstances of each case will govern the exercise of judicialdiscretion in matters of granting or cancelling bail, therefore noinflexible rule was intended to be laid down by the Supreme Courtin of Bhagirath Singh (supra ). Again in State (Delhi Administration) v. Sanjay Gandhi, (1978) 2 SCC 411 , the Supreme Court observed that the power totake back in custody one who has been enlarged on bail has to beexercised with care and circumspection. But at the same lime itheld that in an appropriate case such a power can be exercised. While so holding the Supreme Court noticed the case of Gurcharansingh (supra) and observed as under :- "in Gurcharan Singh v. State (Delhi Administration), whileconfirming the order of the High Court cancelling the bail ofthe accused, this Court observed that the only question whichthe Court had to consider at that stage was whether "therewas prima facie case made out, as alleged, on the statementsof the witnesses and on other materials", that "there was alikelihood of the appellants tampering with the prosecutionwitnesses". It is by the application of this test that we havecome to the conclusion that the respondent s bail ought to becancelled. "in Shahzad Hasan Khan v. Ishtiaq Hasan Khan and Another,air 1987 Supreme Court 1613, the Supreme Court cancelled thebail of the accused, which was granted by the High Court, havingregard to the gravity of the offence, the nature of the evidenceavailable and the likelihood of the accused tampering with evidence. The Supreme Court in this regard observed as follows :- "having regard to the facts and circumstances of thiscase we are of the opinion that the learned Judge committedserious error in recalling his order dated 3/06/1986 andenlarging the respondent on bail. The occurrence took place,in the broad day light, in a busy market place and there are anumber of eye witnesses to support the case against the respondent who was named as an assailant in the First Information Report. The occurrence took place,in the broad day light, in a busy market place and there are anumber of eye witnesses to support the case against the respondent who was named as an assailant in the First Information Report. Immediately after the occurrence he couldnot be traced (it was alleged that he had absconded) for morethan a month, attempts were made on his behalf to tamperwith evidence. In view of these facts and circumstances therespondent No. 1 was not entitled to bail if the seriousness ofthe matter was realised and a judicious approach was made. We had accordingly set aside the order of the High Court anddirected that respondent No. 1 lshtiaq Hasan Khan shall betaken into custody forthwith and the trial shall proceed inaccordance with law expeditiously. "there is no doubt that the liberty of the accused has to besafeguarded in accordance with law but while keeping in mind theinterests of the accused, the collective interest of the communitycannot be lost sight of so that the parties do not lose faith in theadministration of justice and take law into their own hands towreak vengenance by private retribution. The High Court while considering the question of cancellation of bail can also examine the propriety and legality of theorder passed by the Court of Session. In Smt. Rajani Rani Kar and Another v. Goli Pradhan andothers, 1992 (3) Crimes 181, Orissa High Court, held inter alia,that if it is found that bail to the accused has been granted improperly and arbitrarily, the same can be cancelled by the Highcourt. " ( 11 ) I have REFERRED TO to the aforesaid decision and quoted the samein extenso as the argument advanced and two of the authorities relied uponby Shri Lalit in the present case were also advanced and relied upon in thatcase too. From the decision in Jayanti Prasad Gael (supra) it clearlyfollows that once an accused has been enlarged on bail, his liberation fromcustody cannot be lightly interfered with, but this does not mean that evenin a proper case where ends of justice would be defeated unless the accusedis committed to custody, power of the High Court to cancel the bail cannotbe exercised. Shri Lalit relied upon the following observations of thesupreme Court in Aslam Babalal Desai (supra): "bail granted under Section 437 (1) or (2) or Section 439 (1) can becancelled under Section 437 (5) and 439 (2) where (1) the accusedmisuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (ii) attempts to tamper withevidence or witness, (iv) threatens witnesses or indulges in similaractivities which would hamper smoother investigation, (v) there islikelihood of his fleeing to another country, (vi) attempts to makehimself scarce by going underground or becorning unavailable tothe investigating agency, (vii) attempts to place himself beyond thereach of his surety, etc. These grounds are illustrative and not exhaustive. Rejection of bail stands on one fooling but cancellationof bail is a harsh order because it interferes with the liberty of theindividual and hence it must not be lightly resorted to. " ( 12 ) THOUGH in the above decision the Supreme Court indicated sevengrounds, mostly based upon the activities of an accused after the grant ofbail to him. at the same time it observed that these grounds were illustrativeand not exhaustive and where there are strong grounds, cancellation of bailcan be ordered in a proper case. ( 13 ) THUS the Supreme Court did not depart from the principles laiddown in its earlier decisions including. The State v. Captain Jagjit Singh, air 1962 SC 253 , The State v. Jaspal Singh Gill (supra) and Shahzad Hasankhan v. Ishtiaq Hasan Khan and Another, (supra) etc. where the Supremecourt cancelled the bails having regard to the gravity of the offence,nature of the evidence available, the likelihood of the accused running awayfrom justice, the likelihood of the accused misutilising his liberty by intimidating the witnesses and tampering with evidence, the larger interests of thestate and community including the consideration that parties do not losefaith in the system and take law into their own hands to wreak vengenanceby private retribution. Although it may not be possible for a Court hierarchically 0subordinate to the High Court, which granted bail to the accused, toconsider cancellation thereof without the intervention of a superveningcircumstance, it is competent in law for the High Court to cancel bail in aproper and suitable case as a superior Court, while examining the proprietyand legality of the order granting bail and interfere accordingly. ( 14 ) THE principles which flow from the decisions of the Courts in thematters of grant or cancellation of bail cannot be put in a strait jacket andfacts of each case would govern the matter. ( 15 ) AS regards the submission of learned Counsel for the respondentthat on merits the learned Additional Sessions Judgewas justified in grantingbail to the petitioner is concerned, I am of the opinion that it was not theright stage for the learned Additional Sessions Judge to have exercised hisdiscretion in granting bail to the respondent. The learned Additionalsessions Judge failed to take into consideration that the allegations againstthe accused are very serious. The learned Additional Sessions Judge grantedbail to the respondent in view of his order in Mahender Singh s case. ( 16 ) AT this stage a detailed discussion of the material placed onrecord by the State is not warranted. It would be sufficient to point out thatthe material consists of the alleged extra judicial confession made by Mangeram before Som Pal, Statement of Sham Singh and Raj Dhan regarding thealleged fact that the deceased was last seen alive in the company of theaccused persons on 10/01/1993 only a couple of hours before his death,cfsl report according to which blood detected on the weapons of offence,namely, hockey sticks, which were allegedly discovered at the instance of theaccused, was found to be of "a" Group, which allegedly tallies with theblood group of the deceased and the allegation that accused are trying tointimidate the witnesses. ( 17 ) HAVING regard to the totality of the circumstances of the case andkeeping in view the guidelines laid down in the aferegaid judgments of thesupreme Court I consider it to be a fit and proper ease for cancellation ofof bail of the respondent. Accordingly, the bail of the respondent is cancelled. It will, however, be open to the respondent to move a fresh applicationfor bail after the statements ef Material witnesses have been recorded by thecourt concerned, if so advised. This order of eancellation of bail, however,will not be operative for a period ef 15 days. Petition allowed.