Tej Ram vs Suresh And Anr.
1991 Latest Caselaw 440 Del

JUDGMENT

R.L. Gupta, J.

(1) This petition has been moved by the complainant Tej Ram under Section 439(2) of the Code of Criminal Procedure for cancellation of bail of Suresh Kumar respondent accused (respondent for short) granted by Sh. G.S. Dhaka, Asj, Delhi vide order dated 11.3.91 in Sessions Case Fir No. 154/90 under Section 302/34 Indian Penal Code pertaining to Ps Keshav Puram, Delhi. Another application Cr. M. 782/91 has been moved in this petition giving some additional grounds for cancellation of bail.

(2) The case of the prosecution is that at 9.00 P.M. on 18.7.90 respondent along with his two companions Sanjiv Kumar and Shyam Sunder stabbed Rakesh Kumar son of the petitioner which resulted in his death. It is alleged to be a brutal and sensational murder wherein ten stab injuries were given. Petitioner lodged Fir at Ps Keshav Puram whereupon the respondent and his companions were arrested. Sanjiv Kumar filed Criminal Misc. (M)49/91 which was dismissed as withdrawn on 25.2.91 by this Court. It is alleged that this fact was also brought to the notice of the learned ASJ. The bail is alleged to have been granted to respondent without any valid ground. He was named in the FIR. There are three eye witnesses of the occurrence also. The knife was also recovered. But the learned Asj seems to have been misled in believing that there was no injury on the front portion of the body of the deceased whereas the injury No. 5 in the postmortem report is shown near the nipple on the cheat of the deceased. It is further stated that the learned Asj has given great importance to the anonymous message giving information to the police about the occurrence without appreciating that more than often false message are given by the kith and kin of the accused in order to put investigation on wrong track. Learned Asj also seems to have laid great stress on the point that the petitioner did not disclose the names of the accused to the doctor or that the names of the accused were not written in the column meant for this purpose in the Fir and so on.

(3) In the additional grounds, it is stated that the order was obtained by mis-representing that the first bail application of the respondent was dismissed during investigation and the second bail application, therefore, merited consideration after filing the challan. This was stated to be wrong.

(4) I have heard arguments advanced by learned counsel for the petitioner, respondent 1 as also the State. It may be noted that the State is supporting move of the complainant for cancellation of bail of the respondent. Learned Counsel for the respondent submitted that unless there was an apprehension that the accused would not remain available for trial or that he will temper with evidence or intimidate the witnesses, this Court should not entertain the petition for cancellation of bail. However, this argument was considered by this Court in the case of H.C. Gaur v. Rakesh Vij and Another after noticing the same authorities which are now also being relied upon. These are the cases of State v. Captain Jagjit Since , State v. Jaspal Singh Gill and Bhagirath Singh Judeja v. State of Gujarat 1984 Crl. L J. 160. On the basis of Gircharan Singh and Others v. State (Delhi Administration), Air 1978 Sc 179, it was held, " That although it may not be possible for the same Court who granted bail to consider cancellation of the same in the absence of any new circumstances having crept up it is competent in law to move the High Court for cancellation of the bail." This position, the Supreme Court further ruled, "follows from the subordinate position of the Court of Sessions vis-a-vis the High Court." Therefore, this Court ultimately came to the conclusion that the jurisdiction of the High Court cannot be circumscribed as a general proposition only by the two circumstances, namely, (1) availability of the accused for trial and (2) apprehension or otherwise likelihood of his tempering with evidence." Therefore, if the impropriety is manifest on record in the order of granting bail, the High Court can certainly reverse the order of bail and commit the accused to custody.

(5) In the present case the order of bail certainly is based on wrong premises. It is stated in para 8 of the judgment by the learned Asj, "In this case the conduct of Tej Ram is not free from doubt. He is alleged to be the eye witness of the occurrence but he failed to disclose the names of the assailants to the doctor or to the duty constable whose duty was to report to the police station concerned about the admission of a person in injured condition." No law has been shown to me according to which it may be the duty of the complainant to give the names of the assailant either to the doctor or to the duty constable. Certainly none of them investigates the offence. It is only the police of the particular police station within the jurisdiction of which the offence is committed, which is competent to investigate the matter. Therefore, learned Asj seems to have completely mis-directed himself in basing the bail order on the aforesaid consideration. Learned Asj has then also attached undue importance to the absence of the names of the accused persons in the particular column of the FIR. meant for that purpose because in the body of the Fir the names of the assailants including the respondent are clearly described. Learned Asj was informed by the App that Sanjiv Kumar co-accused had moved an application for bail in this Court which was dismissed. The observations of the learned Asj that he had not been made aware of the order passed on the bail application seems to be justified. The prosecution in this respect should have been vigilant in obtaining copy of the order and should have informed the Asj about the dismissal of the bail application of the co-accused Sanjiv Kumar. It was also the duty of the registry of this Court to communicate to the Sessions Judge, a copy of that order. In future, the registry must communicate copies of all orders passed by this Court to the District Courts and such a lapse is likely to be viewed seriously. Sanjiv Kumar had moved Cr.M.(M) 49/1991 in this Court. It was dismissed on 23.2.91 by the following order, "After being heard at length, counsel for the petitioner wishes to withdraw the petition. Dismissed as withdrawn". I have reproduced the above order to indicate that the application of Sanjiv Kumar was not simply dismissed as withdrawn but it was after Counsel for Sanjiv Kumar had addressed arguments at length that he thought of withdrawing the application because be must have sensed that Sanjiv Kumar will not be released on bail by this Court. Therefore, I ana of the view that the order of bail passed by learned Asj is based entirely on illegal considerations.

(6) It may also be noted that prior to this application wherein the respondent was granted bail, be had moved another application which was dismissed by another learned Asj Sh. H.R. Malhotra on 17.11.90. A perusal of that order shows that the grievance was made by the respondent on two grounds. First ground was that the petitioner Tej Ram had not promptly informed the police about the occurrence and it was some unknown person who had telephonically informed the police that some unknown person had stabbed Rakesh. Second ground was that there was a variation between the statement of the complainant Tej Ram and Post mortem report. As per the post mortem report, injuries were caused on the chest whereas according to the Fir the injuries were on the front portion of the body. Both these contentions were negatived for very cogent reasons. Therefore, a similar grievance made in the second bail application actually should not have been looked into. It may have happened that previous order was not brought to the notice of the learned ASJ.

(7) Therefore, it is apparent that the learned Asj, in view of the rejection of the bail application of the respondent when no new ground had intervened should not have granted bail to the respondent. It is to be noted that the respondent is accused of a serious offence like murder and if bail orders are passed in favor of such persons in such a manner, it is likely to bring to disrepute the entiry judicial process. It is also not a case where it could be said that there was any delay what to speak of inordinate delay in the progress of the trial of the case. Therefore, where the jurisdiction vesting in the learned Asj has been abused and wrongly exercised, this Court will certainly interfere. It may also be noted that according to the story of the prosecution petitioner is alleged to be responsible for causing stab injuries to the deceased on the front portion of the body which will include injury No. 5 on the chest. In the opinion of the doctor conducting post mortem, this injury is individually sufficient to cause death. The observation of the Asj in para 5 that there was no injury on the front, is totally wrong and unfounded.

(8) In the totality of the circumstances, therefore, when the respondent is named in the Fir, is also alleged to have caused one of the fatal injuries, there is not much delay in lodging the Fir, the bail granted to the respondent by the impugned order cannot be allowed to stand and is hereby cancelled. He be committed to jail custody.