Sachin Bansal @ Anshu vs State
2011 Latest Caselaw 4888 Del

             HIGH COURT OF DELHI AT NEW DELHI


                                       Date of Decision: 30.09.2011


+      1. BAIL APPLN. 1512/2009


       SACHIN BANSAL @ ANSHU           ..... Petitioner
                    Through: Mr. Avadh Bihari Kaushik,
                             Advocate.

                              Versus

       STATE                                     ..... Respondent
                              Through: Mr.Sanjiv K. Jha and
                                       Mr.Siddharth Srivastava,
                                       Advocates for complainant.
                                       Mr.Naveen Sharma, APP.


+      2. BAIL APPLN. 1012/2011


       NARENDER MANN                  ..... Petitioner
                   Through: Mr. K.K. Sud, Sr. Advocate
                            with Mr. H.Singh,
                            Advocate.

                              versus

       STATE                                       ..... Respondent
                              Through: Mr.Sanjiv K. Jha and
                                       Mr.Siddharth Srivastava,
                                       Advocates for complainant.
                                       Mr.Naveen Sharma, APP




Bail Appl. Nos.1512/09 & 1012/11                        Page 1 of 26
 CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be           allowed to
       see the judgment?                                   YES
2.     To be referred to the Reporter or not?              YES
3.     Whether the judgment should be reported            in the
       Digest?                                             YES


V.K. SHALI, J.

1. These are the two regular bail applications bearing

Nos.1512/2009 & 1012/2011, filed by Sachin Bansal and

another by Narender Mann respectively.

2. Briefly stated, the prosecution case against the

petitioners/accused persons is that on 21.03.2006 at about

4:30 pm a call bell was given at the residence of the

deceased, S.N.Gupta. Smt.Kamla Devi, the wife of the

deceased S.N. Gupta attended the call. At the main door, she

found a person with beard, aged about 25-30 years, wearing

spectacles & black cap, having a bag and posing himself to

be a Courier boy. He informed her that he had brought a

letter for S.N.Gupta, the deceased. As the Courier Boy is

stated to have alleged that the delivery of the letter would be

made to Sh.S.N.Gupta only, Smt.Kamla Devi, complainant

went inside the house and informed her husband about the

courier. S.N. Gupta went to the door to collect the letter,

however, in the meantime, the complainant who was in the

kitchen heard 2-3 gunshots. It transpired that S.N.Gupta had

been shot by that Courier Boy and he was lying on the floor

in a pool of blood. He was rushed to Jaipur Golden Hospital

with the help of the neighbours, where he was declared as

brought dead.

3. An FIR No.200/2006 was registered under Section 302

IPC read with section 25/27 of the Arms Act by PS

Mangolpuri, Delhi and investigation conducted. The

investigation led to the arrest of the petitioner, Sachin Bansal

on 29.03.2006 on whose disclosure statement the other

accused/petitioner, Narender Mann, was also arrested. It

transpired, after investigation, that Sachin Bansal was a

business partner of the deceased S.N.Gupta and there were

apparently some business differences between them. In

addition to this, the deceased S.N.Gupta had to recover 70-

80 Lakhs of rupees, from Sachin Bansal and his father Shiv

Charan Bansal, which was given to them in connection with

some committees, which were being run by them. Narender

Mann, the other co-accused, had to recover approximately

30-40 lakhs of rupees from the nephew of the deceased. It is

the case of the prosecution that a conspiracy was weaved

between Sachin Bansal and Narender Mann with the help of

few other persons. Narender Mann was arrested on the

disclosure statement of Sachin Bansal. One Rajbir Malik

arranged the pistol similar to the licensed pistol of Narender

Mann. The disclosure statement of Narender Mann led to the

recovery of the car used in the crime and the pistol used as

the weapon of offence along with two live cartridges from the

accused Shailender Singh. One Joginder Singh Sodhi is

alleged to have disguised as a Courier Boy and a friend of

Sachin Bansal, Rajbir Singh, an Advocate had also allegedly

helped Sachin Bansal in devising a conspiracy from choosing

the weapon till the time of collecting the booty for the

murder. So far as Narender Mann is concerned his role unlike

Sachin Bansal, who was alleged to be the kingpin of the

entire conspiracy, was limited to the extent that his

disclosure has resulted in recovery of certain incriminating

articles from the dickey of his car, which were alleged to be

actually used by the person, named, Joginder Singh Sodhi,

who disguised himself as a Courier Boy. In addition to this,

the prosecution case against Narender Mann is that his

licensed pistol was recovered from Sachin Bansal and the

bullets, which were used from the weapon of offence were of

the same or the same type, which were issued to Narender

Mann for his licenced weapon.

4. The trial Court had discharged Sachin Bansal as well as

Narender Mann for the offence of murder but the High Court

vide its order dated 29.05.2009, directed framing of charges

against both of them under section 120B as well as under

Section 302 IPC. The High Court had by the same order

discharged some other accused persons. Special Leave

Petitions have been preferred by Sachin Bansal, complainant

as well as the State against the order of the High Court dated

29.5.2009 though for different reasons. So far as Sachin

Bansal is concerned, he has challenged the framing of charge

under Section 302. In this matter, special leave has been

granted, although there is no stay. So far as the other two

SLP's are concerned, they are also pending though it is not

disclosed whether they are admitted or not. The Supreme

Court has not stayed the trial Court proceedings but the trial

Court record has been summoned and thus the trial is

practically stand still as no effort is being made by any of the

party to get the record released or to get the hearing of

SLP's expedited.

Bail Application No.1512/2009 (filed by Accused- Sachin Bansal)

5. So far as the accused, Sachin Bansal, is concerned his

application for grant of bail was filed in the year 2009, which

is pending till date. There is no dispute about the fact that

this Court, vide order, dated 29.05.2009, had set aside the

order of discharge of Sachin Bansal and directed framing of

charge against him under Section 302 IPC read with Section

120B IPC. Against the said order of 29.05.2009, Sachin

Bansal had filed an SLP, which was granted by the Apex

Court on 26.11.2010 but pending adjudication and there was

no stay against the trial. The Apex Court rejected an

application for grant of bail as late as on 13.05.2011. Copy of

this order has also been filed by the learned counsel for the

respondent.

6. The learned counsel for the petitioner in the present

case has prayed for grant of regular bail and, if not regular,

than, at least, interim bail on the ground that the petitioner

has been in custody since 26.03.2006 (except for a brief

period, when he was discharged), as the trial is not

proceeding. It has been contended that non conduct of the

trial is violating his right to speedy trial guaranteed under

Article 21 of the Constitution of India. It is also contended by

him that so far as the present petitioner is concerned he has

not misused his liberty and the delay in conclusion of the trial

is a vital factor for consideration of the benefit of grant of

bail to him. Reliance, in this regard, has been placed by the

learned counsel for the petitioner on judgment of the Apex

Court in State of Kerala Vs. Raneef, (2011) 1 SCC 784,

wherein the Court has observed as under:

"In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr.Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille."

7. The learned counsel for the petitioner has also placed

reliance on H.B.Chaturvedi Vs. CBI, 2010 (3) JCC 2109, to

contend that the bail is not to be withheld as a punishment,

even assuming that the accused is prima facie guilty of a

grave offence bail cannot be refused as it would amount to

punishing the accused before he is convicted.

7A. It was also contended that he is a law abiding citizen

and there is no direct evidence against him with regard to

the allegation of killing of S.N.Gupta. It is also stated that he

is a family man and he has a small daughter of five years

who has also not seen him for the last so many months. The

learned counsel has also relied upon case titled Pritam Singh

@ Pappu Vs. State 2002 92) JCC 930 and Anil Mahajan Vs.

Commissioner Customs and Another 2000 (84) DLT 854.

8. As against this, both the learned APP as well as learned

counsel for the Complainant, has vehemently opposed the

application for grant of bail to the accused, Sachin Bansal.

The learned APP has contended that so far as the question of

grant of bail to the petitioner, in the instant case, is

concerned the most important thing to be seen is the

seriousness or the gravity of the offence, which can be seen

from the quantum of sentence, which it carries, apart from

the prima facie nature of allegations against him. It is also

contended that so far as the question of bail is concerned

delay in conclusion of trial cannot be the sole basis of

extending the benefit of grant of bail to an accused more so

in a case where he himself is responsible for the same. It has

been contended that the petitioner himself has gone to the

Apex Court assailing the order dated 29.05.2009, passed by

the High Court and it was for the petitioner himself to have

ensured that the record of the High Court, which has been

summoned by the Apex Court be got released from the said

Court so that the trial could continue expeditiously as there

was no stay against the trial. But the petitioner has made no

sincere efforts in this regard.

9. The learned APP has also raised the plea that earlier

also the petitioner had filed a bail application, which was

rejected and even the Apex Court turned down the

application for grant of bail to the petitioner as late as on

13.05.2011. Under these circumstances, as there is no

change in the circumstances of the present petitioner,

therefore, he does not deserve to be enlarged on bail. The

learned counsel for the complainant, who was present, has

also vehemently supported the points urged by the learned

APP for the State.

10. I have carefully considered the submissions made by

the respective sides and gone through the records.

11. So far as the question of grant of bail in a non-bailable

offence, more so, in an offence, where the petitioner is

accused of having alleged to have committed the most

heinous crime of murder is concerned the factors, which have

to be taken into consideration, while exercising such a

discretion are almost well settled by now in catena of

authorities. These parameters are: the gravity of the offence;

the nature of allegations; the past conduct of the accused;

his roots in the society and the chance of his fleeing from the

processes of law or tampering with the evidence. The

analysis, based on the aforesaid parameters, the very first

parameter regarding the nature of allegations against the

petitioner are very serious. The prosecution case is that the

petitioner, Sachin Bansal was the kingpin of the entire

conspiracy in ensuring the liquidation of the victim,

S.N.Gupta, in a most meticulous and pre-planned manner in

order to settle his professional difference and to ensure that

neither he nor his father S.C.Bansal have to return the huge

amount of Rs.70-80 lakhs, which was purported to have

been invested by the deceased in the various committees

being run by the father of the present petitioner. The offence

of murder is the most heinous crime and carries the sentence

of death and life imprisonment, therefore, naturally the

gravity of the offence is very serious and so far as the role of

the petitioner, in this regard, and the evidence which has

been gathered is concerned, on a prima facie view of the

matter not only to show the involvement of the petitioner but

a great deal of planning and deliberation by the petitioner. It

also shows the meticulous method in which the crime has

been committed. The petitioner has gone to the extent of

even utilizing the alleged services of an Advocate in order to

pre-empt that offence is not detected. This is reflected from

the fact of recovery of Narender Mann's licenced weapon

from him and the alleged user of the bullets either issued to

Narender Mann though for a different but somewhat similar

weapon. Therefore, these facts in itself are such a serious

thing which makes the Court reluctant to extend the benefit

of grant of bail in his favour and I need not dwell on other

parameters or their existence, so far as Sachin Bansal is

concerned. So far as, the delay in conclusion of trial is

concerned, no doubt it is a vital ground for consideration but

delay cannot be taken advantage of by the accused in a case

where he himself is responsible for the same. Further the

judgment in Raneef case (Supra) is distinguishable from the

facts of the present case, in view of the above observations.

Apart from this, that was case under Foreign Exchange which

cannot be said to be as serious as the present case.

Chaturvedi's case (Supra) is also distinguishable as bail is

not being denied because of punishment but because of the

gravity of the offence with which he is charged. Since, this is

a case of conspiracy there will hardly be a direct evidence as

claimed by the learned counsel.

12. In the instant case, the petitioner was discharged by

the trial Court and on revision being filed by the State in the

High Court, vide order dated 29.05.2009, charges were

directed to be framed against him. The petitioner himself has

challenged the said order in the Apex Court in which leave

has been granted to him but the Apex Court has not stayed

the proceedings of the trial Court and the record of the trial

Court has been summoned by the Apex Court for the

purpose of hearing of the appeal, it was open to the present

petitioner to have filed an application to get the record of the

trial Court released so that the trial could have continued

because the Apex Court has not consciously stayed the trial.

13. On the contrary, the petitioner has chosen to file an

application for grant of bail before the Apex Court, which was

dismissed as late as on 13.05.2011. If the delay would have

been a ground, the Apex Court itself would have granted the

bail to the petitioner or observed something in this regard

but it dismissed the application and since then there has

been absolutely no change in the circumstances. As a matter

of fact, when the application of the present petitioner has

been dismissed by the Apex Court despite special leave

having been granted, I feel it will be totally inappropriate for

this Court to pre-empt the entire matter and release the

present petitioner on bail, which was filed in the year 2009

because the order of rejection of the bail by the Apex Court

cannot be nullified by a Court, which is certainly inferior to

the Apex Court, by extending the benefit of bail to the

petitioner. So far as the other two judgments are concerned,

they are also not helpful to the petitioner. Bail is a matter of

judicial discretion to be exercised keeping in view the facts of

each individual case and merely because it is granted in one

particular fact of situation, it does not mean that the

petitioner is also entitled on bail.

14. For the reasons mentioned above, I feel that the

petitioner is not entitled to the grant of regular bail. So far as

the prayer made during the course of oral submissions, by

the learned counsel for the petitioner for grant of an interim

bail with a view to enable the petitioner to undergo

treatment for mental disease or for any other reason, is

concerned, the same cannot be made a ground for grant of

interim bail as the petitioner is being taken care in the

hospital and proper treatment is being given to him.

15. Accordingly, the bail application of the petitioner-

Sachin Bansal is dismissed.

Bail A.No.1012/2011 (filed by the Petitioner/ Narender Mann)

16. So far as the bail of the petitioner/accused, Narender

Mann, is concerned, it was contended by Mr.K.K. Sud,

learned senior counsel for the petitioner that the nature of

evidence, which have been gathered against the petitioner is

not of the type, which will be able to show that he was a part

of the conspiracy. It was contended by him that the

petitioner has been falsely implicated in as much as he has

been arrested on the basis of the disclosure statement

purported to have been made by the accused, Sachin Bansal

and that the disclosure statement is totally inadmissible. So

far as the recovery of various incriminating articles like the

gloves, goggles, the photographs of the deceased, which

were purported to have been used by the actual assailant,

who carried out the killing, are stated to have been planted

on the present petitioner. As regards the user of the bullets

purported to have been issued to the present petitioner for

his licensed weapon is concerned it was contended that the

prosecution case is that the bullets, which were actually used

from the unlicensed weapon for killing S.N.Gupta was issued

to the petitioner has not even been prima facie established.

This is only a conjecture and surmise, which can be

dislodged, only by way of cross-examination of the

witnesses, who are produced. In any case, it was contended

that the petitioner is being made to suffer for a delayed

disposal of his trial, which is his fundamental right

guaranteed under Article 21 of the Constitution for no rhyme

and reason. It was contended that admittedly the petitioner

has not gone to the Apex Court challenging the framing of

charge against the petitioner though he was discharged by

the trial Court and ordered to be charged by the High Court.

17. It is contended that he has roots in the society, his

business has suffered considerably and there is no chance of

his fleeing from the processes of law much less his tampering

with the evidence. In this regard, it was contended by

Mr.Sud, learned senior counsel that the petitioner after his

arrest was released on bail, he was falsely implicated by the

complainant in respect of an offence under Section 506 IPC

on account of the alleged threats having been given to the

complainant side to not to testify against him, which has

ultimately resulted in his discharge which clearly belies the

apprehension of the complainant that the petitioner will be a

threat to the holding of a fair trial, if he is released on bail. It

was contended by the learned senior counsel that if not on

regular bail, the petitioner may be enlarged at least on

interim bail for a period of six months so as to enable him to

resume his contact with the family and also to take steps to

get the trial expedited by approaching the Apex Court.

18. The learned APP has vehemently opposed the grant of

bail to the petitioner, Narender Mann also. The grounds,

which have been urged for opposing the bail application of

the accused, Sachin Bansal, have been reiterated and stated

to be equally applicable to the case of the present petitioner.

Similarly, the learned counsel for the complainant has also

supported the submissions made by the learned APP

opposing the grant of bail to the present petitioner on the

ground that delay cannot be the basis or rather consideration

for grant of bail to an accused who is alleged to have

committed a heinous crime. For this purpose, the learned

counsel for the complainant has placed reliance on case titled

Kalyan Chandra Sarkar Vs. Rajesh Ranjan, AIR 2004 SC

1866. It has been contended by the learned counsel for the

complainant that earlier also when the petitioner was

released on bail he had threatened the witnesses of the

complainant side for which an FIR was registered and,

therefore, there is a reasonable apprehension that in case he

is released on bail he will threaten the witnesses afresh.

19. I have carefully considered the submissions made by

the learned counsel for the parties and gone through the

record. No doubt, the nature of allegations against the

petitioner are very serious in nature and he is alleged to be a

part of a group which conspired to kill an innocent person,

S.N. Gupta but the fact of the matter remains that the

petitioner though an accused of a serious crime has a right to

have a speedy and expeditious disposal of his trial. The

petitioner has been admittedly in custody for almost 5½

years as claimed by the learned senior counsel except for a

brief period when he was discharged. There is no doubt that

the allegations against the petitioner are also very serious on

account of being a part of a conspiracy which he carried out

together with Sachin Bansal and other accused to liquidate

the deceased. This was allegedly also actuated by personal

gain by way of recovery of money which he would have got

from Sachin Bansal, which was otherwise payable to the

deceased. His role is further prima facie established because

of recovery of various incriminating articles from the dickey

of his car, dickey and coupled with the fact of recovery of his

licensed weapon and cartridges from Sachin Bansal.

20. There being no immediate sign of the SLP coming up

for hearing in routine course or on account of no semblance

of efforts being made by any of the three parties, who have

preferred SLP's to expedite the hearing of their SLP's against

the order dated 29.05.2009, the right of the petitioner to get

an early hearing are getting defeated as the entire trial is

held up despite there being no stay as the trial Court record

is stated to have been summoned by the Apex Court. None

of the parties despite the suggestions having been given by

the Court to approach the Apex Court for the release of the

record seems to have taken any step for getting the record

released.

21. I feel that the case of the present petitioner is slightly

distinguishable from the case of Sachin Bansal, in this regard

as he cannot be blamed for the delay.

22. So far as the judgment of Kailash Chandra's case

(supra) is concerned, I have gone through the same. No

doubt, in the said judgment, the period of incarceration,

which was 3½ years, has not been held to be a ground so

different to warrant the grant of bail but the facts of that

case were slightly different as compared to the facts of the

present case. In the case, which has been cited by the

learned counsel for the petitioner, the respondent Rajesh

Ranjan @ Pappu Yadav, was granted bail by the High Court,

and, thereafter witnesses examined had turned hostile, while

as in the instant case, the trial itself is not able to proceed

for want of record and consequently there is no question of

any witness turning hostile and the right under Article 21 of

the Constitution of the petitioner to have a speedy trial is

defeated. Therefore, I feel so far as the case of the petitioner

is concerned, it deserves to be dealt on a different footing

and at least the prayer of the petitioner for grant of interim

bail for a limited period till the time the trial recommences be

granted to him. For this purpose, the other aspects with

regard to his enlargement on bail being a threat to fail trial

or his past conduct of misusing his liberty or apprehension of

his fleeing away from the processes of law need to be

examined.

23. If done so, no doubt, the past conduct of the petitioner

is alleged to be not clean in as much as he had threatened

the complainant side for which FIR was registered. But it has

been stated by the learned senior counsel for the petitioner

that he was discharged in that case by the trial Court. No

doubt, the petitioner has been able to earn discharge, I feel

that this can be taken care of by not only warning the

present petitioner but also by putting the condition that he

shall not approach directly or indirectly any witnesses or the

complainant or threaten them in any manner whatsoever and

even a slightest deviation from the same will be visited with

the cancellation order.

24. The petitioner is admittedly a married person having

roots in the society as alleged in the petition, therefore, I feel

that the petitioner must be permitted to breathe at least

fresh air for a limited period till the trial recommences. I am

clear in my mind that this period of interim relief to the

petitioner has to be for a very limited span so as to enable

the petitioner to take steps to approach the Apex Court for

expeditious return of the trial Court record or alternatively

expeditious disposal of the SLP by bringing to its notice that

his rights are also getting defeated by non-disposal of the

SLP which none of the three parties, namely, Sachin Bansal,

complainant or for that matter the State are ready to

expedite by approaching the Apex Court.

25. For the above-mentioned reasons, I feel that the

petitioner deserves to be granted interim bail for a period of

three months from the date of his release, subject to his

furnishing a personal bond in the sum of Rs.50,000/- with

two sureties of the like amount to the satisfaction of the

learned trial Court. It is made clear in the opening itself that

this period of three months is subject to the condition that in

case the trial commences prior to the expiry of three months

then the petitioner will have to necessarily surrender and the

examination of the witnesses will take place only after the

petitioner has surrendered so as to ensure that there is free

and fair recording of the testimony of the witnesses. It is also

made clear in the beginning itself that in no circumstances

whatsoever, the petitioner shall file an application seeking

enlargement of this period of interim bail and if filed the

same shall not be entertained in any manner whatsoever

before he surrenders before the Jail Superintendent after

availing of his benefit of interim bail. It is also made clear

that this grant of interim bail is subject to the condition that

he shall not threaten the witnesses or leave the country or

the National Capital Region of Delhi without the permission of

the Court and he shall keep the Jail Superintendent as well

as the Investigating Officer informed about his mobile

number.

26. With these directions, the application of the petitioner-

Narender Mann is partly allowed.

27. Expression of any opinion herein before may not be

treated as an expression on merits of the case.

V.K. SHALI, J.

September 30, 2011 SS