Research › Search › Judgment

Punjab High Court · body

2006 DIGILAW 1407 (PNJ)

Parveen Kumar v. State Of Haryana

2006-03-30

NIRMAL YADAV

body2006
Judgment Nirmal Yadav, J. 1. Through this petition filed under Section 439(2) read with Section 482 of the Code of Criminal Procedure, petitioner has prayed for cancellation of bail granted to respondent No. 2 vide order dated 6.9.2003 (Annexure P-9) passed by Additional Sessions Judge, Rewari, in a criminal complaint under Sections 420/406/409/120-B of the Indian Penal Code. 2. Petitioner filed a complaint before the trial Court against the accused persons under Sections 420/406/409/120-B IPC of the Indian Penal Code. On appreciation of preliminary evidence adduced by the complainant, the trial Magistrate, vide this order dated 6.7.2000, summoned the accused persons, including respondent No. 2 Mahender Singh for offences punishable under Sections 420/406/409/120-B of the Indian Penal Code. Respondent No. 2 evaded service for more than three years and did not appear before the trial Court. It was only after the non-bailable warrants were issued against the accused persons including respondent No. 2 that they surrendered before the trial Magistrate on 3.5.2003. Respondent No. 2 applied for bail, which was dismissed by the trial Magistrate vide order dated 5.8.2003. 3. Respondent No. 2 moved another bail application bearing No. 187 dated 6.8.2003, which came up for hearing before the Court of Shri Rajender Parshad, Additional Sessions Judge, Rewari. Learned counsel for respondent No. 2 got the bail application dismissed as withdrawn vide order dated 18.8.2003. Then another Bail Application bearing No. 210 dated 26.8.2003 was moved by respondent No. 2 Mahender Singh. Notice of the same was given to the State counsel by the Court of Shri K.R. Goyal, Additional Sessions Judge, Rewari for 2.9.2003, a copy of which is annexed with the petition as Annexure P-4. The said application was dismissed as withdrawn by the Court of Shri K.R. Goyal, Additional Sessions Judge, Rewari on the statement made by counsel for respondent No. 2, on 2.9.2003. In the meantime, another bail application bearing No. 215 dated 2.9.2003 was moved by respondent No. 2, which came up for hearing before the Court of Shri Rajender Parshad, Additional Sessions Judge, Rewari. On the statement of the counsel for the applicant, Shri Rajender Parshad, Additional Sessions Judge, passed an order dated 2.9.2003, itself, dismissing the bail petition as withdrawn. Respondent No. 2 then moved fourth bail application bearing No. 209 on 3.9.2003, which was listed before Shri Deepak Gupta, Additional Sessions Judge, Rewari. On the statement of the counsel for the applicant, Shri Rajender Parshad, Additional Sessions Judge, passed an order dated 2.9.2003, itself, dismissing the bail petition as withdrawn. Respondent No. 2 then moved fourth bail application bearing No. 209 on 3.9.2003, which was listed before Shri Deepak Gupta, Additional Sessions Judge, Rewari. The learned Additional Sessions Judge, vide order dated 6.9.2003, granted bail to respondent No. 2, a copy of which is annexed with the petition as Annexure P-9. 4. From the facts narrated above, it abundantly clear that respondent No. 2 filed four bail applications in all, out of which three applications were got dismissed as withdrawn and thereafter he moved fourth bail application, which was listed before the Court of Shri Deepak Gupta, Additional Sessions Judge, Rewari and was allowed vide order dated 6.9.2003. Aggrieved by the said order, petitioner Parveen Kumar has moved this petition mainly on the ground that respondent No. 2 Mahender Singh has concealed true facts and played fraud on the Court. 5. I have heard learned counsel for the parties and perused the material on record. 6. Learned counsel for the petitioner argued that initially Mahender Singh, respondent No. 2 filed bail application before the trial Court, which was dismissed on 5.8.2003. Thereafter, he filed first bail application on 6.8.2003 bearing No. 187, which was assigned to Shri Rajender Parshad, Additional Sessions Judge, Rewari. Notice therein was issued for 18.8.2003 and on the same day, on the basis of statement made by learned counsel for the respondent, the application was dismissed as withdrawn. The respondent then filed second bail application on 26.8.2003 bearing No. 210, which was assigned to Shri K.R. Goyal, Additional Sessions Judge, Rewari and notice therein was issued to the State for 2.9.2003. That bail application was also dismissed as withdrawn on the statement made by learned counsel for the respondent on 2.9.2003. Thereafter, respondent filed third bail application on 2.9.2003 itself bearing No. 215 and the same was assigned to Shri Rajender Parshad, Additional Sessions Judge, Rewari. The said bail application was also got dismissed as withdrawn on the statement made by learned counsel for the respondent. Then on the very next day, i.e. 3.9.2003, he filed fourth application hearing No. 209, which was assigned to Shri Deepak Gupta, Additional Sessions Judge, Rewari and notice was issued for 6.9.2003, on which date the accused was enlarged on bail. Then on the very next day, i.e. 3.9.2003, he filed fourth application hearing No. 209, which was assigned to Shri Deepak Gupta, Additional Sessions Judge, Rewari and notice was issued for 6.9.2003, on which date the accused was enlarged on bail. According to learned counsel for the petitioner, when as may as three bail applications were dismissed as respondent No. 2 did not expect to get any relief and without there being any change in the circumstances, he filed fourth bail application before the Sessions Court on the very next day i.e. 3.9.2003, which was assigned to Shri Deepak Gupta, Additional Sessions Judge. In that bail application he did not mention about earlier two bail applications moved by him on 26.8.2003 and 2.9.2003, which were dismissed as withdrawn, which fact also finds mention in para 1 of the impugned order dated 6.9.2003 (Annexure P-9). He further argued that respondent is the Managing Director of the Company and he has embezzled Rs. 25 lacs of the general public and, therefore, he does not deserve the concession of bail. 7. Learned counsel for the petitioner further argued that since S/Shri Rajender Parshad and K.R. Goyal, Additional Sessions Judges, before whom the first three bail applications were listed, were working at Rewari, the fourth bail application could not have been assigned to Shri Deepak Gupta, Additional Sessions Judge. According to him, the fourth bail application should have been listed before the same Officers who had dealt with the earlier bail applications filed by the respondent and not before any third Officer as it amounts to judicial impropriety. In support, the learned counsel referred to a couple of decisions rendered by the Apex Court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan, AIR 1987 SC 1613 and State of Maharashtra v. Captain Buddhikota Subha Rao, 1989(2) RCR(Crl.) 612 : AIR 1989 Supreme Court 2292. 8. On the other hand, learned counsel for respondent No. 2 argued that respondent was granted bail on 6.9.2003 and till date there is no allegation that he has misused the concession of bail in any manner. He further argued that in all the bail applications the factum of earlier bail applications filed by the respondent had been mentioned. For cancellation of bail, there must exist some cogent and overwhelming circumstance which may warrant an order depriving the accused of his liberty. He further argued that in all the bail applications the factum of earlier bail applications filed by the respondent had been mentioned. For cancellation of bail, there must exist some cogent and overwhelming circumstance which may warrant an order depriving the accused of his liberty. According to him, there are following well-recognised grounds on which powers under Section 439(2) Cr.P.C. can be exercised :- (i) the accused misuses his liberty by indulging in similar criminal activity; (ii) interferes with the course of investigation; (iii) attempts to tamper with evidence of witnesses; (iv) thereatens witnesses or indulges in similar activities which would hamper smooth investigation; (v) there is likelihood of his fleeing to another country; (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency; (vii) attempts to place himself beyond the reach of his surety. It is argued that none of the abovementioned grounds are applicable to the case of the respondent. He has not misused the liberty by indulging in similar criminal activity nor he has attempted to interfere with the course of investigation by tampering with evidence or threatening witnesses. There is also no likelihood of the respondent fleeing to another country. He has been regularly appearing before the Court and thus, has not attempted to make himself scarce by going underground or become unavailable to the investigating agency. 9 As regards the argument of learned counsel for the petitioner that bail applications of respondent No. 2 should not have been entrusted to three different Officers, I do agree with the said argument. The long-standing conventions and judicial discipline, of course, require that subsequent bail application(s) should be placed before the same Judge who had dealt with the earlier bail application(s) and who was available for orders. It prevents abuse of process of Court, inasmuch as, an impression is not created that litigant is shunning or selecting a Court depending on whether the Court is to his liking or not, and is encouraged to file successive applications without any new factor having cropped up. If successive bail applications on the same subject are permitted to be disposed of by different Judges, there would be conflicting orders and a litigant would be pestering every Judge till he gets the order of his liking resulting in affecting the credibility of the Court and the confidence of general public. If successive bail applications on the same subject are permitted to be disposed of by different Judges, there would be conflicting orders and a litigant would be pestering every Judge till he gets the order of his liking resulting in affecting the credibility of the Court and the confidence of general public. There would also be unnecessary wastage of precious Court time. The judicial discipline, therefore, requires that such matters must be placed before the same Judge, if he is available. 10. A report was called from the District & Sessions Judge, Rewari on assigning the bail applications to different Judges. The District Judge has, of course, submitted that there was no reference in the petitions as to from which Court the bail applications were dismissed as withdrawn or not pressed and in these circumstances, these were assigned to different Courts. However, this explanation does not appear to be satisfactory. To my mind, the assigning authority must keep a record of filing and assigning of matters before the Judicial Officers, which, undoubtedly, is not too difficult a task to carry out in the present era of computerization. Successive bail applications filed by the same accused should not be permitted to be disposed of by different Judges and such applications should be assigned to the same Judge who had passed the earlier orders. 11. It is true that liberty of individuals is precious and Courts must make an effort to protect the same. Grant of bail, though, is a matter of discretion, however, it calls for exercise of discretion in a judicious manner and not as a matter of routine. Undoubtedly, the consideration applicable for cancellation of an order granting bail is quite independent and does not overlap with the consideration applicable for grant of bail. For cancellation of bail, the basic criteria would be interference or an attempt to interfere in the administration of justice or abuse of privileges granted to the accused. In the present case, basically two considerations have weighed with the trial Court while granting bail to the accused, one is that the trial may take a long time to conclude as the offences are triable by Magistrate; and another that respondent was in custody for more than one month and further that no apprehension has been shown that respondent may escape trial or he may tamper with the evidence. It was also submitted at the time of arguments that he was simply an employee of the Company and the complainant, who was a Managing Director of the Company, himself admitted that money was deposited with Ram Niwas and Dalbir, who had control over the record and money of the Company. The respondent-accused had himself deposited a sum of Rs. 60,000/- with the company. 12. In the present case, it is true that respondent had filed four successive bail application within a period of one month and three of such applications were dismissed as withdrawn. One of the bail applications was filed on 2.9.2003, which was got dismissed as withdrawn on the same day. Mere withdrawal of bail applications, of course, would not affect the merits of the case. It has to be borne in mind that power to take back in custody an accused who is enlarged on bail, has to be exercised with care as this power is of extra-ordinary nature. It has to be exercised in proper cases and by preponderance of probabilities, the Court has come to the conclusion that accused has not misused the liberty by involving himself in similar criminal activities or by interfering with the course of investigation nor he has attempted to tamper with the evidence or threatened the witnesses in any manner. It is not even pleaded in the present petition that respondent No. 2, who has been granted bail, has misused the concession of bail in any manner. The bail was granted to him on 6.9.2003 and now almost a period of 2-1/2 years has elapsed, there is no evidence placed on record by the petitioner that during this period, the respondent has misused the concession in any manner. The Apex Court in the case of State (Delhi Administration) v. Sanjay Gandhi, 1978(2) SCC 411 : 1978 Crl.L.J. 952 observed that granting of bail is one thing and cancellation of bail already granted is quite another. It is easier to reject bail application in a non-bailable case than to cancel bail once granted, that is, because cancellation of bail interferes with the liberty already secured by the accused, either on the exercise of discretion by the Court or by the thrust of law. For the reasons recorded above, this petition fails and is dismissed.