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2004 DIGILAW 1233 (PNJ)

Ravi Dutt v. State Of Haryana

2004-11-05

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This petition filed under Section 439(2) of the Code of Criminal Procedure, 1973 (for brevity, Cr.P.C.) prays for cancellation of pre- arrest bail granted to respondent No. 2 on 4.1.2000 by the learned Additional Sessions Judge, Kaithal in case FIR No. 455 dated 28.10.1999, registered under Sections 363-A, 366 and 376 IPC, with Police Station, City Kaithal. 2. The principal basis for cancellation of bail is recording of FIR No. 295 dated 22.6.2001 at 1.20 A.M., under Sections 452, 504, 506 and 323 IPC at Police Station, City Kaithal against respondent No. 2 who is alleged to have misused the concession of bail granted to him earlier by the learned Additional Sessions Judge, Kaithal. The application for cancellation of bail filed by the petitioner before the learned Additional Sessions Judge has been dismissed on 11.10.2001 (Annexure P-6). 3. Brief facts of the case are that petitioner, Ravi Dutt has earlier filed FIR No. 455 dated 28.10.1999, registered under Sections 363-A, 366 and 376 IPC, with Police Station, City Kaithal against respondent No. 2 alleging that respondent No. 2 had abducted his daughter, Seema who was about 15 years of age. She has been student of 10+1 class in Government Girls Senior Secondary School, Kaithal. It was alleged that on 25.10.1999, Seema went to school from her house but did not return. It was alleged that Seema was abducted by Virender Kumar, respondent No. 2, as he was also missing from that date. Respondent No. 2 was arrested on 31.10.1999 and remained in custody till 18.11.1999 when he was released on regular bail by the learned Additional Sessions Judge (I), Kaithal. subsequently, an offence under Section 376 IPC was added and again a warrant of arrest of respondent No. 2 was issued by the Judicial Magistrate, Kaithal. However, respondent No. 2 was granted pre- arrest bail by the learned Additional Sessions Judge vide his Order dated 4.1.2000 primarily on the ground that statements of the prosecutrix recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C were in direct conflict with each other. The Superintendent of Police, Kaithal recorded the statement of the prosecutrix and her father - the petitioner on 26.11.2000 on the direction issued by this Court. 4. The Superintendent of Police, Kaithal recorded the statement of the prosecutrix and her father - the petitioner on 26.11.2000 on the direction issued by this Court. 4. However, while on bail, respondent No. 2 is alleged to have committed offences as disclosed in FIR No. 295 dated 22.6.2001 registered at 1.20 A.M. with Police Station, City Kaithal. The offences alleged to have been committed, disclosed in the FIR are under Sections 452, 504, 506 and 323 IPC. The version disclosed against respondent No. 2 is that the complainant had already lodged an FIR against respondent No. 2 and he is on bail in that case. It is alleged that respondent No. 2 has been threatening the complainant and his family members to compromise the matter. On 21.6.2001 at about 2.00/3.00 p.m. respondent No. 2 called at his house threatening that he would take the daughter of the complainant that night and hurled abuses. On account of the apprehension created by the threats given by respondent No. 2, the petitioner called Ruldu Ram son of Lachman Dass and his brother-in-law Ram Phal at his residence. In the evening at about 12 OClock when they were talking to each other, respondent No. 2 alleged to have come inside the house by opening the door and started abusing the petitioner. He caught him by neck and asked the petitioner where his daughter was. He is alleged to have given punch blow on the head of the petitioner. Some injuries are alleged to have been caused by Danda to Ram Phal, brother-in-law of the petitioner. Then they were able to catch respondent No. 2. The police was informed which reached the spot. On the basis of the aforementioned allegations, an application, under Section 439(2) Cr.P.C. for cancellation of regular bail granted on 18.11.1999 and pre-arrest bail granted on 4.1.2001 (Annexure P-2) was filed before the learned Additional Sessions Judge but the same has been declined on 11.10.2001 on the ground that respondent No. 2 has also filed a criminal complaint against the petitioner and that the bail can be cancelled only if there was serious apprehension to prosecution with regard to tampering with eye- witnesses (Annexure P-6). 5. After hearing the learned counsel for the parties, I am of the considered view that this petition deserves to be accepted. 5. After hearing the learned counsel for the parties, I am of the considered view that this petition deserves to be accepted. Respondent No. 2, who is already facing proceedings in case FIR No. 455 dated 28.10.1999, registered under Sections 363-A, 366 and 376 IPC, with Police Station, City Kaithal was granted concession of regular bail under Section 439 on 18.11.1999. When the offence under Section 376 IPC was added later on and warrant of arrest was issued against respondent No. 2, then, he was granted pre-arrest bail on 4.1.2000 by the learned Additional Sessions Judge. In the aforementioned FIR, respondent No. 2 is alleged to have kidnapped the minor daughter of the petitioner, under Sections 363-A, 366 and 376 IPC. During the pendency of the proceedings in the aforementioned FIR, respondent No. 2 has been released on regular bail on 18.11.1999 and later on when warrant was issued on the addition of offence under Section 376 IPC, pre-arrest bail was granted on 4.1.2000. 6. It is thus obvious that respondent No. 2 made attempt to commit the same offence by trespassing into the house of the prosecutrix and has caused hurt to the petitioner, her father and others. Respondent No. 2 has misused the concession of bail by attempting to commit the offence for which he is already facing trial. Under Section 437(3)(b) Cr.P.C, statutory guidance has been provided which shows that an accused who has been granted bail, is not to indulge in commission of an offence similar to the one of which he is accused. Such a condition is implicit in every bail order. It appears to be well settled that if an accused has abused the liberty granted to him in similar or other unlawful acts, then, the bail granted to such an accused can validly be cancelled. In this regard, the observations made by the Supreme Court in the case of Raghubir Singh v. State of Bihar, 1986(4) SCC 481 can be cited with advantage and the same read as under :- "The due administration of the justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts." (emphasis added) Similar observations have been made by the Supreme Court in the case of Ram Govind Upadhyay v. Sudarshan Singh, 2002(2) RCR 250 (SC) : 2002(3) SCC 598 and Mandata Singh v. State of Rajasthan, 2004(2) RCR(Crl.) 14 (SC) : 2004(9) SCC 428. In the latter judgment, speaking for the Court, Honble Mr. Justice Ashok Bhan has observed as under :- "5. The respondent State field Crl. M.P. No. 714 of 2004 in the instant special leave petition for cancellation of temporary bail given to the petitioner on the ground that he had misused the liberty granted to him. It was alleged that he had grossly abused his liberty by entering in a conspiracy and getting one Rajendra Kumar Jain assaulted who had bought shops/properties from the petitioner and his family. In this regard FIR No. 451 dated 27.11.2003 under Sections 341, 323, 308 and 120-B has been registered at Police Station Bajaj Nagar, Jaipur. As per medical report, apart from the simple injury Rajendra Kumar Jain had received two grievous injuries as well. 6.xxx xxx xxx xxx xxx 7. On the asking of the Court the learned counsel for the respondent- State produced the case diaries in FIR No. 451 of 2003. On a perusal of the contents of FIR No. 451 of 2003 and the extracts from the case diaries, we are prima facie satisfied that the petitioner has misused the liberty granted to him by this Court on 6.10.2003. Without expressing any opinion on the merits we deem it appropriate to cancel the temporary bail granted to the petitioner on 6.10.2003. He is directed to surrender to the authorities concerned forthwith." (emphasis added). 7. The view taken by the learned Additional Sessions Judge that bail could have been cancelled only where there is serious apprehension expressed by the prosecution with regard to tampering with evidence cannot be accepted because that may be one of the grounds but is not the only ground for cancellation of bail. The aforementioned position of law is evident from the views expressed by the Supreme Court in the judgments already referred in the preceding paragraphs. The aforementioned position of law is evident from the views expressed by the Supreme Court in the judgments already referred in the preceding paragraphs. In view of the above, the instant petition is allowed. The bail orders dated 18.11.1999 and 4.1.2000 passed by the learned Additional Sessions Judge in favour of respondent No. 2 are cancelled. The bail bonds are forfeited. Respondent No. 2 shall be taken into custody forthwith unless he surrenders.