Satish @ Pandit vs State & Another
2008 Latest Caselaw 1300 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      CRL.M.C.No.2072/2008

%                 Date of decision : 11.08.2008


Satish @ Pandit                           ....... Petitioner
                        Through:    Mr. Bishvajeet Swain, Advocate.

                                Versus



State & Another                           ......... Respondents
                        Through :   Mr.R.N.Vats, APP for State along
                                    with Inspector Krishna Murari.


CORAM :-
* HON'BLE MR. JUSTICE ANIL KUMAR

     1.    Whether reporters of Local papers may              YES
           be allowed to see the judgment?
     2.    To be referred to the reporter or not?             NO
     3.    Whether the judgment should be reported            NO
           in the Digest?

ANIL KUMAR, J.

*

+ Crl.M.A. No.7729/2008 in Crl.M.C. No.2072/2008 *

Allowed subject to all just exceptions. Application is disposed of.

Crl.M.C. No.2072/2008

The petitioner has impugned the order dated 20th June, 2008,

whereby the bail granted to him, vide order dated 12th June, 2008, was

cancelled on the ground that the petitioner had not disclosed the fact

that the bail applications of co-accused, Shyam, was dismissed by the

Session Court and that another of his bail application was pending in

the High Court and thus the petitioner had obtained bail by

suppressing material facts. The cancellation of bail was also justified on

the ground that the role assigned to co-accused was similar to that of

the petitioner and therefore continuation of bail to the petitioner shall

result in conflicting findings in the matter. The bail was cancelled in

order to have parity with the accused and to avoid alleged conflicting

findings in the matter.

The Sessions Court while granting bail to the petitioner, vide

order dated 12th June, 2008, had considered the role of the petitioner

that he along with co-accused took the prosecutrix to Palwal, Haryana

and thereafter co-accused Mukul Bhadana took her to Kolkata and

raped her, though the petitioner had returned back from Palwal. At the

time the bail was granted the petitioner was in custody for about three

months.

The petitioner has challenged the cancellation of the bail on the

ground that he cannot be held guilty of suppression of material facts

regarding the rejection of the bail applications of the co-accused Shyam

as he was not aware of it, not being a party to bail applications of the

co-accused, and it was the duty of the prosecution and the complainant

to bring it to the notice of the Court. Though the learned Magistrate,

while cancelling the bail, admitted that there was lapse on the part of

the investigating agency in not informing the Court the fact that the

other co-accused Shyam's bail application was dismissed, still the

petitioner has been made liable.

The learned counsel for the petitioner has emphatically contended

that he was not a party to the bail applications filed by the co-accused

Shyam and so he could not have the knowledge about the rejection of

the bail application of the co-accused. It is also contended that rejection

of the bail application of the co-accused Shyam could not preclude the

Court from granting bail to the petitioner and in the circumstances it is

contended that there could not be parity between the two cases nor can

the bail granted to the petitioner be cancelled on the ground of parity.

It is also contended that while granting bail under Section 439

circumstances other than the merits of the case are also to be

considered, which can be different for different co-accused, and in the

circumstances, merely on account of parity the bail could neither be

granted nor be declined. The petitioner is stated to be a young man of

24 years and is married and has one minor child.

The learned counsel for the petitioner has relied on Kashmira

Singh v.Duman Singh, (1996) 4 SCC 693; Nityanand Rai v.State of

Bihar & Anr, (2005) 4 SCC 178; Bhagirathsinh, s/o.Mahipat Singh

Judeja v.State of Gujarat, (1984) 1 SCC 284; State of .U.P v.Amarmani

Tripathi, (2005) 8 SCC 21; Dolat Ram and Ors v.State of Haryana,

(1995) 1 SCC 349; Nanha v.State of U.P, 1993 Crl.L.J.938 (DB); Shobha

Ram v. State of U.P, 1992 Crl.L.J.1371 to contend that after bail has

been granted to the petitioner, the Court could not cancel the bail on

the ground of parity or on the alleged concealment of fact regarding

dismissal of the bail applications of other co-accused.

Per contra the learned counsel for the respondent has very

vociferously contended that the petitioner ought not to have been

granted bail by order dated 12th June, 2008, as the offence alleged to

have been committed by the petitioner is heinous and serious and the

statement of the prosecutrix made under Section 164 of the Criminal

Procedure Code and her suicide on the next day were sufficient for the

Court to have declined bail and consequently the Sessions Court was

justified in cancelling the bail of the petitioner, by order dated 20th

June, 2008.

From the perusal of the order dated 20th June, 2008, whereby the

bail granted to the petitioner was cancelled, it is apparent that the bail

has not been cancelled on the ground that the facts pertaining to merits

of the case were considered and the facts on the merit of the case are

such as would have disentitled the petitioner for bail. While granting

bail by order dated 12th June, 2008 the trial Court had considered the

role of the petitioner, which was stated to be that he took the

prosecutrix to Palwal and from there co-accused Mukul Bhadana took

her to Kolkata while the petitioner with other co-accused Shyam came

back to Delhi from Palwal. It is also apparent that order dated 12th

June, 2008 was not challenged by the complainant or the State in any

appropriate proceedings. The learned counsel for the complainant has

also contended that though the matter was argued on merits while

considering the application for bail, his contentions were not considered

by the trial Court. However, from the order it is apparent that matter

was not argued on merits by the complainant nor has the order dated

12th June, 2008 granting bail been challenged by the complainant on

the ground that the complainant's arguments on merits were not

considered. Even in the reply filed to this petition it has not been

alleged that the complainant had argued the matter on merits but those

contentions have not been considered by the Court. The respondent has

relied on Dinesh M.N (S.P) v. State of Gujarat, (2008) 5 SCC 66 to

contend that the application of the petitioner for grant of bail was liable

to be rejected on merits also.

In Dinesh's case (supra) relied on by the respondent No.2 it was

held that while cancelling bail the Court can consider whether

irrelevant materials were taken into consideration or not by the Court

granting the bail. In the said case while applying for the bail the

accused had taken a plea that the person killed was hardened criminal

which was not a factor which could be taken into account for granting

bail. In these circumstances it was held that while granting bail if

irrelevant materials have been taken into consideration, which made

order of bail vulnerable, then the effect of such irrelevant materials, can

be considered. It was further held that in order to cancel bail, the

irrelevant material which was taken into consideration should be of

substantial nature and not of trivial nature. The ratio of the case is not

applicable to the present facts and circumstances. The Sessions Court

has cancelled bail only on the ground of parity holding that the

continuation of bail would be conflicting with the order passed in the

case of the other accused Shyam whose bail applications were

dismissed earlier by the Sessions Court. It will be pertinent to note that

the co-accused Shyam, whose bail applications had been dismissed by

the Sessions Court, has been granted bail by the High Court in bail

application No.1238/2008. Consequently, the order cancelling the bail

of the petitioner on ground of parity and to avoid conflicting order in the

matter will not be sustainable.

In Kashmira Singh (Supra) relied on by the petitioner this Court

had held that if the accused had not mentioned about the rejection of a

bail of the co-accused, the prosecution or the complainant could have

disclosed the same and the omission on the part of the

prosecution/complainant could not be the ground to come to the

conclusion that the relevant material has been suppressed by another

accused. In any case there is no positive evidence to attribute

knowledge of the dismissal of the bail applications of Shyam to the

petitioner, so as to make an inference about the suppression of material

facts.

In Bhagirathsinh (Supra) the Apex Court had held that

cancellation of bail should not be by way of punishment even if prima

facie case against the accused is established. Very cogent and

overwhelming circumstances are necessary for an order directing

cancellation of bail. It was held that even where prima facie case is

established, the approach of the Court in the matter of bail should not

be that the accused should be detained by way of punishment, but

whether the presence of the accused would be readily available for trial

or that he is likely to abuse the discretion granted in his favour by

tampering with the evidence. The Apex Court had held that while

examining the order directing cancellation of bail the High Court should

not interfere with the discretionary power of the Sessions Court.

Relying on the case of Amarmani Tripathi (Supra) the learned

counsel for the petitioner has contended that in an application for

cancellation, conduct subsequent to release on bail and supervening

circumstances alone are relevant. It was contended that though in an

appeal against the grant of bail, all aspects that were relevant under

Section 439 read with Section 437 may be relevant, the same cannot be

taken into consideration for cancellation of bail. It was further held that

even in appeal against the grant of bail where the accused has been at

large for a considerable time, the post bail conduct and supervening

circumstances will also have to be taken note off and they are not the

only factors to be considered as in the case of the application for

cancellation of bail. In the present case no appeal was filed by the

respondent No.2 against grant of bail to the petitioner and from the

order dated 20th June, 2008, cancelling the bail of the petitioner, it is

apparent that the factors that were relevant under Section 439 read

with Section 437 were not taken into consideration, as the bail has

been cancelled only on the ground of parity and suppression of material

fact regarding declining the bail by the Sessions Court in the case of co-

accused Shyam. Though the learned counsel for respondent No.2

contended that grounds on merits were raised, but since the order

dated 12th June, 2008 does not deal with the said grounds and since

the order dated 12th June, 2008 has not been challenged by the

respondent No.2 on the ground that the grounds as agitated by him

were not dealt with or taken into consideration, it is not possible to

believe respondent No.2 in the present facts and circumstances. The

inevitable inference in the circumstances is that the bail has been

cancelled only on the ground of parity with the co-accused Shyam

whose bail applications were earlier rejected by the Sessions Court and

the suppression of this fact by the petitioner. As has been mentioned

earlier even the co-accused Shyam has since been granted bail by this

Court. In the circumstances, the cancellation of the bail of the

petitioner will not be sustainable.

In another case Dolat Ram and Ors (Supra) relied on by the

petitioner, this Court had held that factors to be taken into

consideration for rejection of bail in non-bailable offences and for

cancellation of bail already granted are different and the two cases

should be dealt with on different basis. The Division Bench of Allahabad

High Court in Nanha (Supra) had held in paragraph 60 that prior

rejection of the bail application of one of the accused cannot preclude

the Court from granting bail to another accused whose case had not

been considered at the earlier occasion. In the circumstances, it was

held by the Division Bench that it is not necessary for the accused to

disclose in his application that the bail of other accused has already

been refused. In the present case, consequently, the petitioner was not

liable to disclose that the bail applications of the co-accused Shyam had

been rejected by the other Courts. It is equally true in the

circumstances that merely on account of rejection of the bail

application of co-accused Shyam, the bail to the petitioner could not be

denied by the trial Court which in fact was granted to the petitioner by

order dated 12th June, 2008.

In Shobha Ram (Supra) another case relied on by the petitioner,

it was held that there could not be parity in rejection of bail application

because of the reason that when the bail application of one co-accused

is rejected on merits, the other co-accused is not a party to that bail

application and such another accused will have no opportunity to make

his submissions before the Court. Rejecting bail to an accused only on

the ground that the bail application of other accused has been

dismissed will be denial of principle of natural justice,

Consequently, the inevitable inference is that the Sessions Court

could not cancel the bail of the petitioner on the ground of parity or on

the ground that the petitioner had not disclosed about the cancellation

of the bail applications of other co-accused Shyam in the present facts

and circumstances. In any case, the other co-accused Shyam has since

been granted bail by this Court in bail application No.1238/2008.

In the circumstances, for the aforesaid reasons, the order of the

learned trial Court dated 20th June, 2008 cancelling the bail of the

petitioner is not sustainable and is, therefore, set aside. Consequently

the petitioner is granted bail on his furnishing a personal bond of

Rs.40,000/- with one surety of like amount to the satisfaction of the

trial Court. The petitioner shall not influence any of the witnesses in

any manner. The petition is allowed in terms hereof.

Dasti under the signatures of Court master.

August 11th, 2008. ANIL KUMAR, J.

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