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2001 DIGILAW 1018 (PNJ)

Rain Kumar Malhotra v. State Of Haryana

2001-09-14

NIRMAL SINGH

body2001
Judgment Nirmal Singh, J. 1. This is a petition under Section 482 Cr.P.C. for quashing and setting aside of order dated 21.5.2001 passed by the Special Judge, Ambala whereby the bail earlier granted to the petitioner in RC- 6(5)/98/Sill-V/SIC-II/C.B.I. dated 5.6.1998 in a case titled C.B.I. v. Chander Bhatia and others was cancelled. 2. On the written complaint of Mamta Arora a case was registered on 7.10.1997 in police station NIT Faridabad. The relevant part of the complaint reads as under : "It is submitted that I, Mamta Arora, am Editor of Rashtriya Janadesh Bureau (a newspaper) and running in 5 D/8A, NIT Faridabad. Legislator Chander Bhatia, brother Rajesh Bhatia, nephew Navin Bhatia and eight other persons have forcibly taken possession of our office and looted goods worth Rs. 68 lacs along with our office, our Summo vehicle, scooters as well as Rs. 42,000/- in cash which was lying in the almirah. Legislator Chander Bhatia was also with them. Our two security personnel, namely Titu (Narinder) and another have been kidnapped and taken away by them. We do not have any information about their well being. Even earlier, Chander Bhatia Legislator, Bunti son of Ram Sharan Bhatia, Advocate Ram Kumar Malhotra and others were extending threats to our lives. We have conveyed the information to the administration about the same. Kindly take legal action against the accused. Our goods and our employees be got returned to us." The petitioner was also arrayed as an accused. The petitioner moved an application for bail before Special Judicial Magistrate, CBI, Ambala. The same was dismissed vide order dated 2.5.2001. The petitioner applied for bail before Special Judge, Ambala who vide order dated 8.5.2001 allowed bail. 3. K.K. Jhanji moved an application Annexure P-5 before Special Judge, Ambala on 16.5.2001 on the ground that the petitioner has threatened him for dire consequences and that he will show his power and requested that the bail of the petitioner may be concelled. The petitioner filed reply Annexure P-6 to the application and the learned Special Judge, after hearing the petitioner and counsel for the complainant as well as the counsel for the C.B.I. cancelled the bail order on the ground that the petitioner has misused the concession of bail, aggrieved by which, the present petition has been filed. 4. The petitioner filed reply Annexure P-6 to the application and the learned Special Judge, after hearing the petitioner and counsel for the complainant as well as the counsel for the C.B.I. cancelled the bail order on the ground that the petitioner has misused the concession of bail, aggrieved by which, the present petition has been filed. 4. Shri R.S. Ghai, learned Senior Counsel appearing on behalf of the petitioner submitted that the petitioner was not named in the FIR. The allegations levelled against Chander Bhatia, Rajesh Bhatia, Navin Bhatia and eight other persons were that they have forcibly taken possession of the office of Mamta Arora complainant and looted goods worth Rs. 68 lacs and have taken away the articles from the office including Summo vehicles, Scooters as well as Rs. 42,000/- in cash. He submitted that in the FIR the only allegation levelled against the petitioner is that prior to the occurrence dated 7.10.1997 petitioner along with Chander Bhatia, Bunti son of Ram Sharan Bhatia, Advocate, Ram Kumar Malhotra and others were extending threats to the lives of Mamta Arora and others. He submitted that K.K. Jhanji was not a witness to the occurrence. Learned Special Judge, after going through the record of the case rightly allowed bail to the petitioner. He submitted that K.K. Jhanji moved an application before the Special Judge for the cancellation of bail on the ground that the petitioner has threatened him. He submitted that there was no occasion for the petitioner to go to the house of K.K. Jhanji. The entire story has been concocted by the him. He submitted that the petitioner filed reply to the application for cancellation of bail moved by K.K. Jhanji and denied the allegations. He also pointed out that the petitioner is a practising Advocate for the last more than 30 years and is law abiding person. He also pointed out that the allegations levelled in the complaint are vague. There is no allegation in the FIR that the petitioner has threatened K.K. Jhanji not to appear in the Court. He submitted that if the petitioner has threatened on 12.5.2001, then K.K. Jhanji should have immediately lodged a report with the police but no such report has been lodged. He submitted that bail once granted is not to be cancelled on the vague allegations. He submitted that if the petitioner has threatened on 12.5.2001, then K.K. Jhanji should have immediately lodged a report with the police but no such report has been lodged. He submitted that bail once granted is not to be cancelled on the vague allegations. It can only be cancelled if there are specific allegations and from the record if it is proved that the party who has been granted bail has misused the concession of bail. In support of his submission he has relied upon Daulat Ram v. State of Haryana, All India Criminal Law Reporter 1995(1) SC 1, Balbir Singh v. Amar Nath and others, 1999(2) RCC 407, Om Parkash v. State of Punjab, 2001(3) RCR 106, Nirpal Singh v.. S.D.M. Ram Pura Phul, 2001(3) RCR 107. 5. On the other hand Shri C. Sahay, Special Public Prosecutor for the CBI assisted by Shri Vikas Kumar, Advocate counsel for the K.K. Jhanji submitted that the petitioner has threatened the material witness namely K.K. Jhanji and has misused the concession of bail, the bail should be cancelled. 6. In the State through the Delhi Administration v. Sanjay Gandhi, AIR 1978 SC 961, the Apex Court has held as under : "Rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is earlier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial." 7. In Daulat Ram and others v. State of Haryana, All India Criminal Law Reporter 1995(1) SC 1 it has been held as under : "Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so 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. 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 evasion 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. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted." 8. In view of the above judicial precedent, no case is made out in this case for cancellation of bail. The bail has been cancelled by the Special Judge in a very mechanical manner and without perusing the facts in right perspective. Firstly name of K.K. Jhanji does not figure in the FIR that he is a witness to the occurrence. 9. It has been alleged in the application for cancellation of bail that the petitioner has threatened K.K. Jhanji on 12.5.2001 at 6.30 P.M. at his residence. If the petitioner has gone with an idea to threaten K.K. Jhanji then K.K. Jhanji must have lodged a report with the police immediately after occurrence. But no such report has been lodged by the petitioner. At the hearing, learned counsel for the complainant failed to give any plausible explanation for not lodging the report. He has tried to explain that the petitioner has relation with Chander Bhatia M.L.A. therefore, the complainant has not lodged the report. This explanation is not satisfactory. The complainant should have informed the police. At the hearing, learned counsel for the complainant failed to give any plausible explanation for not lodging the report. He has tried to explain that the petitioner has relation with Chander Bhatia M.L.A. therefore, the complainant has not lodged the report. This explanation is not satisfactory. The complainant should have informed the police. If the police has not taken any action then he can plead that he went to the police station and lodged a report but no action has been taken. Even, there is no explanation why this application was filed in the Court after 3 days of the alleged occurrence. 10. In view of the above discussion, I am of the view that learned Special Judge has withdrawn the bail order without any cogent reason in a mechanical manner and taking into consideration the application moved by the complainant as a gospel truth. There was no cogent and convincing material before the Special Judge for cancellation of bail rather the order has been passed overlooking the guidelines by tie Apex Court in Sanjay Gandhis case (supra). 11. For the reasons mentioned above, I accept the petition, set aside the impugned order and restore the order granting bail to the petitioner by the Special Judge.