Mahesh Gupta vs Nct Of Delhi And Anr.
2003 Latest Caselaw 792 Del

JUDGMENT

S.K. Agarwal, J.

1. This order will dispose of a petition by the complainant under Section 439(2) of the Code of Criminal Procedure seeking cancellation of bail of accused Rajeev Gupta granted by Additional Sessions Judge vide orders dated 4.12.2001.

2. Facts in brief are that on 15.4.2001, petitioner Mahesh Gupta lodged a complaint that M/s. National Meal Industries is a partnership firm comprising of (i) complainant, Mahesh Gupta, (ii) Smt. Indira Gupta, (iii) Rajeev Gupta, and (iv) Krishan Gupta. The complainant has 5% share in this firm. Civil litigation between the parties arising out of partnership was 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 Krishan Gupta and 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 and 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. Applications for anticipatory bail, of Smt. Indira Gupta and Krishan Gupta were dismissed by the Sessions Court, as well as by this Court on different dates.

3. Rajeev Gupta (respondent No.2) was arrested on 5th of November, 2001. His application for bail was declined on 19.11.2001 by learned Additional Sessions Judge. On 3.12.2001, Rajeev Gupta moved third application and by order dated 4.12.2001, he was released on bail by learned Additional Sessions Judge, on his furnishing personal bond in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of the trial court, subject to the condition that he shall deposit an FDR of Rs.5.0 lacs in any nationalised bank in the name of Metropolitan Magistrate of P.S. Prashant Vihar along with bail bond. The said amount of Rs.5.0 lacs was ordered to be dealt with by the trial court in accordance with law at the conclusion of the trial. The amount was deposited and he was released on bail. This order is under challenge.

4. Learned counsel for the petiitoner has 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 him were grave in nature; investigations were at initial stages; father of the accused was absconding and release of petitioner would have hampered investigations of the case and that there is no change in the circumstances, necessitating his release. Learned counsel also argued that earlier application was dismissed by the court of Shri P.C. Ranga, 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 fourth application and not the third one. 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 newphew of petitioner, petitioner had only a 5% share in the partnership firm; respondent was arrested on 5.11.2001 and remained in judicial custody for almost a month; 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 and that there is no manifest illegality in the granting bail.

7. The arguments that the accused did not stated that it was his fourth application for bail and instead captioned the bail application as " third application for bail under Section 439 Cr. P. C.," and that he did not bring to the notice of the Court that the earlier applications for anticipatory bail of the co-accused were declined have 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 bail of the accused was earlier rejected by the Court of Sh. P. C. Ranga, Additional Sessions Judge, Delhi, therefore, the subsequent application for bail 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 Judge, 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 deal with 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.

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