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2004 DIGILAW 1243 (PNJ)

Manoj Kumar v. C. B. I. Sic-ii, New Delhi

2004-11-09

SURYA KANT

body2004
Judgment Surya Kant, J. 1. In this application under Section 439 of the Code of Criminal Procedure, the petitioner has come up with a prayer to release him on regular bail in the case, FIR No. 308 dated September 5, 2001, Police Station Civil Lines, Karnal and C.B.I. No. RC-1(S)/2002-S/U-(V)/SIC-II/CBI, New Delhi under Sections 364/302/201/120-B Indian Penal Code dated 14.1.2002. The petitioner was arrested on April 16, 2004 and is in judicial custody since then. 2. On September 5, 2001, Smt. Hardevi Wadhwa wife of Daulat Ram Wadhwa (since deceased) made a complaint upon which FIR No. 308 under Section 364 Indian Penal Code in P.S. Civil Lines, Karnal was registered, which, as translated by the petitioner, reads as follows :- "That my husband Daulat Ram Wadhwa went to his Karnal residence House No. 852, Sector 13, Karnal on 31.8.2001, which he usually does. He met O.P. Rana S/o Deep Chand, resident of House No. 398, Vikram Marg, Karnal on 31.8.2001 at about 6-7 P.M. and he told him that his case was fixed for Monday and he should accompany him on that date. Vinod Kumar S/o Ram Kishan lives at our residence. He saw him on 1.9.2001 at about 9.30 A.M. in absolute fine condition. On 1.9.2001 my husband has been picked up by some unknown persons. Please find him, I shall be highly grateful. My husband had left Delhi in his case No. DC-6CH-2072 make Maruti. Please find him. We have found the Maruti car on the information of Mirzapur Police Station abandoned in their area. Sd/- Hardevi Wadhwa" 3. Later on having found that Daulat Ram Wadhwa had actually been murdered, the aforesaid FIR was converted under Section 302 Indian Penal Code. The District Police of Karnal while investigating the afore-mentioned FIR named four persons as accused against whom challan (charge-sheet) was also presented. They were (i) Jai Vir, (ii) Om vir, (iii) Ramesh, and (iv) Naresh. The above named four persons were arrested by the local police on 11.9.2001, 30.9.2001, 11.9.2001 and 13.9.2001 and were later on released on bail on 18.2.2002, 14.1.2002, 26.2.2002 and 12.2.2002, respectively. 4. Meanwhile, the informant Smt. Hardevi Wadhwa approached this Court by way of Criminal Misc. They were (i) Jai Vir, (ii) Om vir, (iii) Ramesh, and (iv) Naresh. The above named four persons were arrested by the local police on 11.9.2001, 30.9.2001, 11.9.2001 and 13.9.2001 and were later on released on bail on 18.2.2002, 14.1.2002, 26.2.2002 and 12.2.2002, respectively. 4. Meanwhile, the informant Smt. Hardevi Wadhwa approached this Court by way of Criminal Misc. No. 44883-M of 2001 in which she while expressing her dissatisfaction in relation to the investigation carried out by the local police, sought a fresh investigation of the case by the Central Bureau of Investigation (for short CBI). This petition was decided by this Court on December 7, 2001 with a direction to hand over the investigation of the case to CBI. Consequently, the CBI registered the case under Sections 364/302/201/120-B Indian Penal Code, as referred to in the opening paragraph of this order. 5. After the investigation, CBI has presented the charge-sheet and as per the prima facie case made out by it, deceased Daulat Ram Wadhwa was about 75 years old businessman living in Pitampura who used to visit Karnal frequently to look after his business and property. He had a good friendship with late Srikrishan Gupta (father of the petitioner herein) who was resident of Karnal but in due course of time both the families developed property and financial disputes leading to animosity. Late Srikrishan Gupta was murdered on November 26, 1993 and deceased Daulat Ram Wadhwa was arrested as one of the accused person in FIR No. 850 dated 26.11.2003, PS City Karnal, was charge-sheeted along with six other accused persons but was acquitted in the year 1997. Civil disputes are still stated to be pending between the two families. With an intent to take revenge of the murder of his father and also because of the property disputes with the family of deceased Daulat Ram Wadhwa, the petitioner allegedly entered into a conspiracy with other harboured criminals and got the murder of deceased Daulat Ram Wadhwa committed with a promise to pay Rs. 15 lacs to the other accused persons for this act. A prima facie case of an offence under Section 120-B Indian Penal Code also was made out. 6. The petitioner approached this Court for the grant of pre-arrest bail which was, however, declined. 15 lacs to the other accused persons for this act. A prima facie case of an offence under Section 120-B Indian Penal Code also was made out. 6. The petitioner approached this Court for the grant of pre-arrest bail which was, however, declined. He, thereafter, approached the Honble Supreme Court and his anticipatory bail application was disposed of by their Lordships vide an order dated April 2, 2002 with the following directions :- "Heard learned counsel for the petitioner. We are not inclined to grant anticipatory bail at this stage, therefore, we direct the petitioner to surrender before the jurisdictional Magistrate. Before surrendering he shall give a copy of the regular bail application to the concerned public prosecutor. On the date of filing of the application for grant of regular bail, the jurisdictional Court shall dispose of the same on merits. With the above direction the special leave petition is dismissed." 7. It is, however, not disputed that during the course of investigation, the petitioner fully co-operated with the CBI and joined the investigation as and when required. 8. The petitioner surrendered before the Magistrate concerned on April 16, 2004 and was sent to the judicial custody and is thus confined from last about seven months and through this petition, he has sought his release on regular bail. 9. It is not denied that in the charge-sheet filed against the petitioner and some of his co-accused, the CBI has given clean chit to Om Vir, and no charge-sheet could be filed against yet another co-accused Naresh who is stated to have died in a road accident on December 2, 2002 and that the case is now fixed for the consideration of the charges before the Special Judge (CBI), at Ambala on November 9, 2004. 10. 10. Learned counsel for the petitioner contends that the petitioner is entitled for the concession of grant of regular bail by this Court on the grounds that :- (i) his co-accused Jai Vir, Om Vir, Ramesh and Naresh (since deceased), who allegedly committed the actual murder were released on regular bail after they remained in police/judicial custody for a period ranging between four to five months whereas the petitioner who has been implicated under Section 120-B Indian Penal Code is in custody for the last about seven months; (ii) the investigation is already complete and charge-sheet has been filed, thus, there is no occasion for the petitioner to tamper with and/or to interfere with the on-going investigation; (iii) the petitioner has been implicated on the basis of an alleged confessional statement made by Jai Vir accused under Section 164 Criminal Procedure Code though he had pleaded not guilty when charge-sheet was filed by the local Police; (iv) that the so- called confession has been made by Jai Vir with a tacit understanding with the CBI to exonerate his real brother and co-accused, namely, Om Vir, who has since been given a clean chit by the CBI; (v) the statement of Ram Bahadur, alleged servant of deceased Daulat Ram Wadhwa, is totally hear-say evidence; (vi) similarly, the statement of Tej Vir, a constable of Haryana Police, who was deputed with the petitioner as a personal security officer (as the petitioner had some alleged threat perception) in order to suggest that the main accused met the petitioner immediately after committing the crime, is also falsified by the fact that as per the official record of the Haryana Police, he had left for Sirsa along with the petitioner at 3 PM from Karnal and they reached Sirsa at 7 PM, thus, the petitioner was not in Karnal on 31.8.2001 at the time of alleged occurrence; (vii) as per the informant Smt. Hardevi Wadhwa, on the basis of which FIR No. 308 dated 5.9.2001 was registered as PS Civil Lines, Karnal, deceased Daulat Ram Wadhwa was last seen on 1.9.2001 at about 9.30 AM by Vinod Kumar son of Ram Kishan, who was the actual servant of deceased; (viii) as per the CBI, murder of Daulat Ram Wadhwa was committed by Jai Vir, Ramesh alias Ghasitu and Naresh by strangulating him with parna (cloth) and his dead body was thrown in a canal by Jai Vir and Naresh in the night of 31.8.2001 and on inquiries conducted regarding recovery of body of the deceased, a dead body of an unidentified male aged person was found near Hissar on 3.4.2002 and the post mortem was done at PGIMS, Rohtak under report No. PME/02/04/05 dated 4.4.2002; (ix) as per the post mortem report dated 4.4.2002, duration of death of the recovered dead body was within a period of one to two months prior to the said recovery and that this report allegedly further suggests that the deceased had died due to head injury and not due to strangulation; (x) since even according to CBI no actual payment has been made by the petitioner to the persons alleged to have committed murder of deceased Daulat Ram Wadhwa, no case under Section 120-B IPC is made out against him; (xi) the CBI has submitted a list of 61 prosecution witnesses, therefore, the trial of the case is likely to continue for a sufficiently long time and in case the petitioner is not released on bail, it will amount to subjecting him to a sentence even when he has not been found guilty of committal of an offence. 11. On the other hand, Shri Rajan Gupta, learned Special Public Prosecutor for the CBI, contends that (i) reference to the earlier investigation conducted by the Haryana Police qua the petitioner is totally misplaced because of the subsequent and fresh investigation carried out by the CBI; (ii) once after completion of the investigation, charge-sheet has been presented and a prima facie case is made out against the petitioner, the facts as mentioned in the charge-sheet alone can be referred by the petitioner; (iii) in a case of criminal conspiracy, the statement of co-accused can also be accepted; (iv) there are at least 12 witnesses to be produced by the prosecution including Ajay Wadhwa (son of the deceased), Sunil, Vinod Kumar, Alok Bhatnagar, Ram Bahadur (employees of the deceased), Tajvir Singh, constable of Haryana Police, Manoj Sharma an employee of the family of the petitioner, Ishwar Singh, Sarpanch of petitioners village and a few more to whom the petitioner can influence and/or cause threats if he comes out of the judicial custody and thus, he is likely to obstruct and tamper with the fair trial against him; (v) while invoking the discretionary power to grant concession of the bail, the heinous nature of offence should be kept in view; (vi) in the light of parameters laid down by their Lordships of the Supreme Court in relation to the exercise of concession of bail, the accused like the petitioner in the present case, does not deserve such concession as held in (a) Ram Govind Upadhyay v. Sudarshan Singh, 2002(2) RCR(Crl.) 250 (SC) : 2002(3) SCC 598, (b) Shahzad Hasan Khan v. Ishtiaq Hasan Khan, 1987(2) SCC 684, (c) Mansab Ali v. Irsan, 2003(1) RCR(Crl.) 228 (SC) : 2003(1) SCC 632, and (d) State of Maharashtra v. Ritesh, 2001(2) RCR(Crl.) 214 (SC) : 2001(4) SCC 224; (vii) prima facie a strong case of criminal conspiracy, as defined by their Lordships in the case of Firozuddin Basheeruddin v. State of Kerala, 2001(4) RCR(Crl.) 20 (SC) : 2001(7) SCC 596 and Mohd. Khalid v. State of West Bengal, 2002(7) SCC 334, is made out against the petitioner; (viii) alternatively, the petitioner to released on bail only after the statements of material witnesses are recorded by the learned Special Judge, Ambala. 12. Khalid v. State of West Bengal, 2002(7) SCC 334, is made out against the petitioner; (viii) alternatively, the petitioner to released on bail only after the statements of material witnesses are recorded by the learned Special Judge, Ambala. 12. Shri D.S. Sandhu, learned counsel appearing on behalf of the complainant has also vehemently opposed the prayer in this application and has supported Shri Rajan Gupta in this regard. 13. The guidelines and the relevant considerations required to be noticed while exercising the discretion of grant of bail have been illustrated by their Lordships of the Supreme Court in Ram Govind Upadhyay v. Sudarshan Singh, 2002(3) SCC 598, with the following observations :- "3. Grant of bail though being a discretionary order - but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the Court and facts, however, do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail - more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter." 14. The Apex Court after observing that the relevant considerations can be explained only illustratively and not exhaustively, referred to some of the following considerations to be kept in view :- (a) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. (c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 15. In Mansab Ali v. Irsan, 2003(1) SCC 632, their Lordships of the Supreme Court while not appreciating the grant of bail by a laconic order, observed as follows :- "4. The provisions of the Criminal Procedure Code confer dictionary jurisdiction on criminal Courts to grant bail to the accused pending trials or in appeals against convictions. Since the jurisdiction is discretionary it is required to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In granting or refusing the bail, the Courts are required to indicate, may be very briefly, the reasons for grant or refusal of bail. The jurisdiction is not to be exercised in a casual and cavalier fashion as has been done by the learned Judge in this case." 16. In State of Maharashtra v. Ritesh, 2001(4) SCC 224, the Apex Court held that while deciding an application under Section 439 Criminal Procedure Code for the grant of bail, the High Court should not go into the merits of the case and decide, without affording an opportunity to prosecution, about non- complicity of the accused in the crime. In State of Maharashtra v. Ritesh, 2001(4) SCC 224, the Apex Court held that while deciding an application under Section 439 Criminal Procedure Code for the grant of bail, the High Court should not go into the merits of the case and decide, without affording an opportunity to prosecution, about non- complicity of the accused in the crime. In Prahlad Singh Bhatti v. NCT, Delhi, 2001(2) RCR(Crl.) 377 (SC) : 2001(4) SCC 280, the Supreme Court held that the jurisdiction to grant bail is to be exercised on the basis of well settled principles by keeping in mind the nature of accusations, nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, larger interests of the public or State and other similar considerations. 17. Without going into the merits of this case and/or expressing views in relation to all the rival submissions made by the learned counsel for the parties, so that no direct or indirect inference of tinkering with the merits of the case is drawn in future, however, keeping in view the peculiar facts and circumstances of this case, coupled with the factors like (i) the petitioner has already spent about seven months in judicial custody; (ii) his co-accused, namely, the alleged killers of Daulat Ram Wadhwa are already enlarged on bail, (iii) the investigation is complete and charge-sheet has been filed; (iv) the petitioner is stated to be MBBS qualified professional doctor and is certainly not a bard-core professional criminal; (v) the prosecution intends to examine 61 witnesses, therefore, the conclusion of trial is likely to take reasonable period and any direction to conclude the same hurriedly might prejudice the prosecution case; (vi) there appears to be no possibility of tampering and/or threatening of most of the witnesses by the petitioner except 4-5 of them who have remained associated with him in one way or the other and about whom the possibility of his attempting to influence cannot be ruled out, I am of the considered view that it will be too harsh and anti-thesis of an individuals liberty if this application is dismissed outrightly. At the same time, this Court is required to keep it in mind that the petitioner has been prima facie accused for conspiring and committal of an offence under Section 302 Indian Penal Code - a crime against the society, and mere spending of about seven months in jail alone is no ground to release him on bail, therefore, this bail application is disposed of with the following directions :- (i) the Special Judge (CBI), Ambala is directed to decide framing of charge on or before November 20, 2004; (ii) in case the petitioner is discharged at the stage of framing of charges itself, he, obviously, shall stand released; (iii) however, if charges are framed against the petitioner, the CBI is directed to produce Ram Bahadur (PW9), constable Tejvir Singh (PW10), Manoj Sharma (PW11), Ishwar Singh (PW15) and Vinod Kumar (PW38) as prosecution witnesses forthwith and their statements shall be recorded by the learned Special Judge on or before December 3, 2004. (iv) direction No. (iii) above does not preclude the learned Special Judge from recording statements of more than the five witnesses, referred to above, if it is possible, on or before the afore-mentioned date of December 3, 2004 itself; (v) the petitioner thereafter shall be released on bail on furnishing of adequate bail bonds and surety to the satisfaction of the learned Special Judge and subject to other conditions which the learned Special Judge may deem appropriate; (vi) it is made clear that if, after his release on bail, the petitioner is found to be tampering with the evidence, threatening the witnesses and/or misusing the concession of bail in any other manner, it shall be open for the prosecution (CBI) to move an appropriate application before this Court for cancellation of the bail granted to the petitioner. Let a copy of this order be handed over to Shri Rajan Gupta, learned Special Public Prosecutor for CBI, for its intimation and follow up action.