Mahesh Gupta vs Nct Of Delhi And Anr.
2003 Latest Caselaw 791 Del

JUDGMENT

S.K. Agarwal, J.

1. This petition is filed by the complainant under Section 439(2), Cr.P.C. for quashing of the order dated 20.12.2001 passed by the Court of Shri M.L. Sawhney, Additional Sessions Judge, Delhi, granting anticipatory bail to respondent No.2 in case FIR No.330/2001 under Sections 420/468/471/120-B, IPC, P.S. Prashant Vihar; and the order dated 23.3.2002 passed by the Court of Shri S.S. Bal, Additional Sessions Judge, Delhi, dismissing the application moved by the complainant for cancellation of bail granted to respondent No.2.

2. Facts in brief are that on 15.4.2001, petitioner Mahesh Gupta lodged a complaint against four accused, i.e. (i) Rajeev Gupta, (ii) Srikishan Gupta (respondent No.2), (iii) Indra Gupta, and (iv) Anita Gupta, who were partners in the firm M/s. National Meal Industries. Complainant has 5% share in this firm. Civil litigation between the parties arising out of partnership is pending; other partners of the firm with a view to defraud the complainant and to misappropriate funds of the partnership firm unauthorisedly opened a separate account in the name of the firm, in Punjab and Sind Bank, Azadpur Mandi Branch, Delhi which was being operated by respondent No.2 Srikishan Gupta and co-accused Rajeev Gupta secretly. The complainant came to know about it on 4.4.2001; he went to the bank to stop operation of the account where he was shown a forged partnership deed containing a clause that he had retired as a partner from the firm; his signature on this deed was forged. On his complaint, above-noted case was registered.

3. Shrikishan Gupta (respondent No.2) was granted anticipatory bail vide order dated 20.12.2001. His earlier applications for anticipatory bail were rejected by the Sessions Court on 3.9.2001 and by the High Court on 19.11.2001. Anticipatory bail was granted to him on 20.12.2001 after co-accused Rajiv Gupta had deposited Rs.5,00,000/- in the Court. Petitioner challenged the bail granted to respondent No.2, but his application was dismissed by the learned ASJ on 23.3.2002. Both these orders are under challenge.

4. Learned counsel for the petitioner argued that the said order is wholly unjust, arbitrary and constitutes the abuse of the process of law, which has resulted into miscarriage of justice. Learned counsel argued that the allegations against the respondent are grave in nature; investigations were at initial stages; respondent had absconded and grant of anticipatory bail to him would have hampered investigations of the case especially since there is no change in the circumstances, necessitating grant of anticipatory bail. Learned counsel also argued that earlier application was dismissed by the court of Shri Satnam Singh, Additional Sessions Judge and the subsequent application ought to have been dealt with only by that court alone; and that the accused did not disclose that it was his third and not the second application. In support of his submissions reliance is placed on the observations made in Baldev Singh v. Durga Prasad, 1989 Crl.Law Journal NOC 94 (Delhi), State of Maharashtra v. Captain Buddhikota Subha Rao, and Shalini Rawat v. The State, 1998 1 AD (Cr.) Delhi 77. Learned counsel for respondents argued to the contrary.

5. It is well established principle of law that the accused cannot claim bail as of right in a non-bailable offence but once the bail is granted, it cannot be cancelled on the mere request of the complainant. The bail can only be cancelled when it is shown that either the accused has misused the privilege of bail or it is no longer conducive to allow him to remain on bail. The Supreme Court in Subhendu Mishra v. Subrat Kumar Mishra and another, approved the law laid down by the Court in Dolat Ram v. State of Haryana, , wherein it was held as under:-

"................Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted."

6. Admittedly, a civil dispute is pending between the parties; respondent No.2 is the brother of petitioner, petitioner had only a 5% share in the partnership firm; he was granted bail by learned Additional Sessions Judge after hearing learned APP for State, Investigating Officer was also present and the complainant was also present, FDR of Rs.5.0 lacs has already been deposited by the co-accused, who is the son of respondent No.2, and that there is no manifest illegality in the granting bail.

7. The arguments that the accused did not state that it was his third application for anticipatory bail and instead captioned the bail application as " second application for bail under Section 438 Cr. P. C.," and that he did not bring to the notice of the Court that the earlier applications for anticipatory bail were declined has also no merit. The Apex Court, while rejecting similar contentions in Kashmira Singh v. Duman Singh, held as under:-

"The ground regarding suppression of facts by accused was still weaker. In the first place, knowledge of two bail applications of the co-accused having been rejected has been imputed to the accused without valid basis. Secondly, the fact that the co-accused had applied for bail and had later not pressed the application, had been disclosed since it was known to the accused. That was sufficient indication that the co-accused had not been enlarged on bail. His decision not to press for bail would be indicative of the fact that the Court was disinclined to grant bail or, he did not see sufficient grounds to press the bail application. Be that as it may, the fact remains that the Court was aware that the co-accused was not granted bail. That was sufficient for the Court when it considered the accused's application for bail. Besides, it was the prosecution/complainant's duty to bring to the Court's notice that two applications of the co-accused for bail were rejected. If the accused did not mention it, nothing prevented the opposite side from placing it on record. It seems to be an omission on the part of the prosecution/complainant's side but, for that it would be wrong to charge them with having suppressed facts."

8. Now coming to the contention that the application for anticipatory bail of the accused was earlier rejected by the Court of Sh. Satnam Singh, Additional Sessions Judge, Delhi, therefore, the subsequent application ought to have been dealt with by the same court; it may be noted here that in Sessions Courts, all bail applications are dealt with, by one of the Additional Sessions Judges, to whom the bail applications are assigned of a particular district. It is not the case of the petitioner that the Court of Sh. M. L. Sahni, Additional Sessions Judge, did not consider the other bail applications when the bail was granted to the respondent. The ratio of the various decisions cited by the learned counsel for the petitioner is not applicable to the facts of this case. The learned ASJ granted anticipatory bail to the respondent taking into consideration the fact that complainant had only 5% share in the partnership; that the accused was his real brother; and that co-accused Rajiv Gupta son of respondent No.2, had deposited Rs.5.0 lacs in Court. The order under challenge were passed in the presence of the IO. I have been taken through the order granting anticipatory bail to the respondent No.2 as also the order declining the application for cancellation of bail. There is nothing in the orders warranting interference by this Court.

9. For the foregoing reasons, I find no merit in the petition and the same is dismissed.