Chander Pal And Ors. vs State And Anr.
1993 Latest Caselaw 116 Del

JUDGMENT

R.L. Gupta, J.

(1) I propose to dispose of both these petitions bya common order. Cr M(M) 2800/92 is filed by four petitioners whereas the second petition (Cr. M.(M) 2846/92) is filed by only two of them. These are tiled under Section 482 of the Code of Criminal Procedure, (Code forshort) and Article 227 of the Constitution of India. In the first petition,the relief sought, is that the order dated 3.9.1992 of the learned M.M. for issuing processes under Sections 82 and 83 of the Code may be declared null and void while in the second petition order for issue of non-bail able warrants issued against them on 18.8,92 is sought to be quashed, being illegal and arbitrary as the petitioners were on bail and their bail had not been cancelled.

(2) The brief facts according to the story of the prosecution based on the statement of Sh. Ved Parkash. injured (who subsequently died on8.6.92) are that at about 9.45 a.m. on 29.4.1992 he was going from his house with a Lota containing Lussi to his Baithak to meet his guests. When here ached near the house of Chander Pal petitioner, he found the petitioners Lok Pal, Amrik Singh and Chander Pal emerging from the house of ChanderPal. They called him from behind. At first he stopped for a moment,but considering that there were bitter relations with them on account of a land dispute and sensing their ill intentions, he started running. They followed him. When lie w.is in front of the Baithak of Sultan Singh, the petitioner Prem Kumar alias Kaira alias Pehlwan and Vikram also camethere. Ved Parkash hurriedly entered the room. From behind Lok Paland Amrik Singh also entered. Lok Pal petitioner caught hold of him while petitioner Amrik Singh after taking out a revolver from his right Dhab fired at him. He received bullet injuries on his neck and immediately fell down. Other persons also came in. Sultan Singh who was there and tried to save him was also given injuries. He further stated that ChanderPal, Kaira alias Prem Kumar petitioners and Vikram were standing outside. On seeing the crowd collecting all of them ran away. The occurrence is alleged to have been witnessed by Rishi Pal and Saroj, who reached there on hearing him cry. Ved Parkash and Sultan Singh were got admitted in Jaipur Golden Hospital. Rohni. Next day Ved Parkash was shifted to Batra Hospital where he expired on 8.6.92 due to injuries received by him. So the case was converted from Section 307 Indian Penal Code to Section 302IPC.

(3) I have heard arguments advanced by Mr. P. N, Lekhi, Sr. Advocate on behalf of the petitioners, Sh. P.P. Grover for Smt. Satya Devi wife of the deceased Vcd Parkash and Sh. R.D. Jolly, Advocate on behalf of theState.

(4) It appears that all the four petitioners describing themselves as residents of Mushtaque Ali Street, Ps Park Sheet, Calcutta filed four separate applications for anticipatory bail in the Court of learned Chief Judge City Sessions Court, Calcutta. The applications of Amar Singh and Lok,Pal petitioners were filed on 13.5.1992 while by the two remaining petitioners on 22.5.92. At that lime the case registered against the petitioners was under Sections 307/452/34 Indian Penal Code in Ps Mangol Pun, Delhi. It appears that at the time of hearing the petitions, Pp was present in Court of learned Chief Judge. It was recorded that he did not oppose the petition and since there was no other material before the learned Judge to reject THE petition and he was not inclined to reject is so no the facts and circumstances submitted on behalf of the petitioners, the petitions were allowed and it was directed that in the event of their arrest, they will be released on furnishing personal bonds of Rs. 5,000.00 with two sureties each of the like amount.However, certain conditions were imposed in respect of each petitioner which were as follows :

(1)That the petitioner shall make himself available for interrogation by the Investigating Officer as and when required.

(2)That the petitioner shall not directly or indirectly, make anyinducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.

(3)That the petitioner shall not, in any way, interfere with the investigations of the case, and

(4)That the petitioner shall appear/surrender himself before the appropriate Court in connection with the relevant case, and report compliance to his Court by 3.7.92."

(5) The matter went to Calcutta High Court also when Smt. Satya widow of Ved Parkash deceased gave. a telegram to the Registrar of the Calcutta High Court which was placed before the Hon'ble Division Bench.It was pleased to pass the following orders on 22.6.199. : - "WE have received a telegram from one Satya. widow of VedPrakash of Mangolpuri. Ved Prakash is allegedly the victim IN a case of murder which took place in Delhi within the jurisdiction of Mangolpuri. Calling for the records pursuant to the telegram we have found that the learned Chief Judge, City Session?Court has granted anticipatory bail to this accused-petitioner without hearing the Delhi Police. The application for anticipatory bail was allowed on terms by the learned Chief Judge, City Session Court, to the effect that in case the petitioner is arrested he is to he released on bail of Rs. 5.000.00 with one surety of the like amount on condition to the effect that he should make himself available for interrogation by the 1.0 as and when required and he shall not directly make any inducement, threat or promise to any person acquainted with the facts of the case from disclosing such facts to the Court or to any police officer. He shall not in any way interfere with the investigation of the case and that he shall appear/surrender himself before the appropriate Court in Delhi in connection with the relevant case and report compliance to this Court by 2.7.92. We call upon the learned Chief Judge.City Sessions Courts to apprise this Court whether any compliance has been reported or not. We issue a Rule calling upon the petitioner, Prem Kumar alias Kaira to show cause as to why the order impugned dated 1.6.92 should not be set aside. Pending the hearing of this Rule we direct the petitioner to surrender before the appropriate Court at Delhi and pray for appropriatereliefs. Let this order be sent to the Officer-in-charge. MangelPuri. Police Station. Delhi. Let this order be also sent to the learned Chief Judge, City Sessions Court. Let this rule be served on the accused-petitioner through the Chief Judicial Magistrate,Calcutta. The Rule is made returnable two weeks hence."

(6) On 14.7.1992 the Hon'ble Division Bench passed the following order : "Y.Dastoor appearing for O.P. in each of the four cases,submits before us that pursuant to the order passed by the learned Chief Judge, City Sessions Court, the accused Opposite Parties' who are the petitioners before the Learned Chief Judge, City Sessions Court, have surrendered in the Court below at Delhi and they have been granted bail by the appropriate Court of competentjurisdiction. They wanted to submit a compliance report before the Learned Chief Judge, City Sessions Court but since the records are before us, they could not do so. Let the records go back to the learned Chief Judge, City Sessions Court so as to accord compliance report. We make it clear that if the accused Opposite Parties (who are the petitioners before the Learned Chief Judge,City Sessions Court) have already surrendered before the Court of competent jurisdiction at Delhi, the present proceeding as initiated by this Court, may be treated as dropped. This matter is treated as part heard by us and the matter is sent back to the learned Chief Judge, City Sessions Court for compliance report.The photostat copies of the bail bond as submitted by Mr. Y.Dastoor, may be kept on record.Let the original records which we called for from the ChiefJudge, City Sessions Court be returned to the said Court forthwith for making a proper report about the compliance of the order as passed by the learned Chief Judge, City Sessions Court. They should be sent back to this Court after compliance reports are filed in the Court below, so as to enable us to pass appropriate orders in this regard. This order will govern all the fourcases."

(7) The petition before the High Court was disposed off on 11.8.92.A perusal of that order indicates that the High Court of Calcutta was given an impression that petitioners had surrendered before the appropriate Court at Delhi and, therefore they chose it fit to drop the proceedings based on the order dated 14.7.1992. But they did observe in this order that the Calcutta City Sessions Court had no jurisdiction to intervene in the matter because of the refusal of anticipatory bail by the Delhi Court. It was further observed that the petitioners took benefit of some Calcutta addresses to invoke the jurisdiction of the Calcutta High Court for the grant of anticipatory bail and disapproved the order of City Sessions Judge without proper notice to Delhi Police. Mr. Jolly on behalf of the State informs that the address of Calcutta given by the petitioners before City Sessions Judge,Calcutta is non-existent as verified by the I.O. of this case.

(8) It then appears that on 10.6.1992 the Investigating Officer applied for issue of NBWs against the petitioners before learned M.M.. Delhi. the learned Magistrate by order dated 11.6.92 issued NBWs to be executed on or before 30.6.1992. Petitioners Prem Kumar and Chander Pal filed applications for anticipatory bail which were also dismissed as withdraws in June, 1992. Copies of these applications along with orders have been filed on record (Crl. M. (M) 2846/92) by Shri P.P. Grover, Advocate.

(9) Learned Counsel for the petitioners Mr. Lekhi contended that it did not matter that the case was later on converted under Section 302 IPC from Section 307 etc. on the death of Ved Parkash. Once they were allowed anticipatory bail by the Calcutta Court they would be deemed on such bail in the Fir registered in respect of the occurrence of this case.The second contention is that the period of 90 days having elapsed from the date of their surrender before the learned Mm, Delhi on 30.6.92 and they having remained in judicial custody for about six days could not be re-arrested now because period of more than 90 days had expired. So faras the first contention is concerned, I am of the view that the order of anticipatory bail will not ensure to the benefit of the petitioners for manyreasons. First reason is that the offence was later on converted to Section302 Indian Penal Code on account of the death of Ved Parkash. The second reason is that after the direction of the Calcutta High Court or even the Chief Judge,Calcutta, petitioners did move anticipatory bail applications before the learned Sessions Judge, Delhi and their petitions were dismissed as withdrawn. Even the Calcutta High Court withdrew the order of anticipatory bail for various reasons already mentioned. Therefore, practically there was no order of anticipatory bail available to the petitioners even under Section 307 IPC. In the case of Chandra Prakash v. Mohan Lal, 1984(2)Crimes 325, the Allahabad High Court took the view that if an accused was granted bail earlier by the Magistrate under Section 324 Indian Penal Code and later on the charge sheet was filed under Section 307 Ipc, and the bail wascancelled, the Magistrate had no jurisdiction to grant bail to the accused second time because of the conversion of the offence from 324 Indian Penal Code to 307IPC. I am in respectful agreement with the aforesaid observations. In the present case the circumstances are still worse for the petitioners. They are even guilty of with-holding material information from this Court that their applications for grant of anticipatory bail were dismissed as withdrawn by the learned Asj, Delhi. It may also be noted that the anticipatory bail applications on behalf of the petitioners were moved by the same Counseli.e. Sh. Nageshwar Pandey. Advocate who has now moved the presentpetition. In the case of Baldev Singh v. Durga Prasad and Others, 1989 C.C.Cases 313 the question was, whether on the mere fact that in a fresh application for bail the material fact of previous bail application having been rejected on merits is concealed amounts to playing fraud on the Court or amounts to abuse of the process of the Court if bail is granted on such application without coming to know about the previous application for grant of bail having been dismissed on merits by the High Court or even by the Sessions Court earlier. The question was answered in the affirmative and in view of the fraud having been practiced on the Court, the bail was ordered to be cancelled. In the present case also, there is no reference made by the petitioners that they had withdrawn their applications for grant of anticipatory bail. They are, therefore, guilty of practicing fraud also on this Court and if this fact had been disclosed to the Court, the order of issuance of NBWs against the petitioners probably would never have been stayed. In fact, I must deprecate the conduct of Mr. Pandey,Advocate in concealing all these materials facts. It was he who was the moving spirit behind the petitioners in all Courts. This is rather unprofessional. He must realize that the nobility of such a good profession does not brook such wanton onslaughts to tarnish its image,

(10) While elaborating the contentions under Section 167(2) of theCode, learned Counsel for the petitioners submitted that the petitioners had remained in judicial custody for about six days under the orders of the learned Magistrate and thereafter they should be deemed to be in the custody of the surety and if the total period of custody was thus counted, the petitioners have already been in custody for more than 90 days and, therefore,they were entitled to grant of bail as a matter of right. If they were entitled to grant of bail as a matter of right, the argument further goes, there was no question of allowing the orders of issue of non-bailable warrants of arrest against them to remain alive. In fact, this argument also seems to be without merit. First of all it may be noted that the petitioners were not released on bail by the learned Magistrate. The order dated 4-8-92(page 47-48 in Crl.M.(M) 2846/92) shows that it was made to appear to the learned Magistrate on behalf of the petitioners that the matter was still under consideration of the Calcutta High Court and that the cancellation of their bail was being considered by the High Court on the telegram of Satya Devi,wife of the deceased. Therefore, the learned Magistrate released the petitioners forthwith. This fact shows that the learned Magistrate did not release the petitioners on bail and, therefore, the concept of the extended custody of the petitioners with surety is not at all applicable. Even if that were so, the surety is not supposed to keep an accused person under detention and he simply makes himself liable to pay a certain amount by way of penalty incase the accused does not appear or the surety is not in a position to producehim. Section 167 of the Code contemplates only two types of custodies i.e.the police custody within the first 15 days of the production of the accused before the Magistrate or judicial custody subsequently. Therefore, this argument also has no merit. It may further be noted-that the fact that the petitioners withdrew their anticipatory bail applications before SessionsCourt. Delhi was also not disclosed to the learned MM. The petitioners are guilty of taking Courts for a ride and such unbecoming conduct of their has to be viewed very seriously. They have displayed scant regard for the majesty and rule of law.

(11) Now ultimately the position comes to this. The petitioners are named in the Fir by the deceased himself when he was still alive. the order of anticipatory bail granted under Section 307 Indian Penal Code to the petitioners by the Chief Sessions Judge, Calcutta or even by the Hon'ble High Court of Calcutta has already been cancelled. Their anticipatory bail applications were dismissed as withdrawn before the learned Asj, Delhi. The only alternative left was to detain them by issue of non-bailable warrants. Therefore, the issue of non-bailable warrants by the learned Magistrate is perfectly in order. It is also not disputed that the petition Cr.M.(M) 2800/92 stands or falls with the other petition. Therefore, both these petitions have no merit and same are hereby dismissed. The petitioners are absent despite orders of this Court to appear today. Therefore, the learned Chief Metropolitan Magistrate, Delhi is directed to issue non-bailable warrants of arrest against them, detain them in judicial custody and cause their production before the area Metropolitan Magistrate for further proceedings according to law. The matter is already delayed. The police shall give top priority to the investigation of this case.