Paramvir Rana vs State & Ors.
2012 Latest Caselaw 2074 Del

*           HIGH COURT OF DELHI AT NEW DELHI

+                  CRL.M.C. 2909/2011

                                      Date of Decision : 27.03.2012

PARAMVIR RANA                                            ..... Petitioner
                             Through: Mr. K. T.S. Tulsi, Sr. Adv. With
                                      Mr. P.C. Dhingra, Adv.

                             versus

STATE & ORS.                                ..... Respondents

Through: Ms. Jasbir Kaur, APP Mr. Shishir Mathur, Adv. for R-2 along with respondent no. 2 in person.

CORAM:

HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (oral)

1. This is a petition filed by the complainant Paramvir Rana

for setting aside the order dated 18.7.2011 by virtue of

which bail was granted to accused Paresh Grewal

(respondent no.2) by the learned Additional Sessions

Judge, Saket in respect of an offence under Section

364A/386/120B/34 IPC registered vide FIR no.47/2011 of

P.S. Dhaula Kuan.

2. Before coming to the contentions urged by Mr.Tulsi,

learned senior counsel for seeking cancellation of the bail

of respondent, it will be worthwhile to give brief facts of

the case.

3. The complainant, Paramvir Rana and the respondent no.2

are ostensibly students of two separate Colleges in South

Delhi Campus of Delhi University. On 05.3.2011,

Paramvir Rana lodged a report with the local police of

Dhaula Kuan that on 01.3.2011 at about 10.00 am, he

was abducted at the gunpoint in his Swift car bearing

registration number DL9C6945 from the gate of Ram Lal

Anand College by four unknown persons who took him to

Sonepat, Panipat and other secret place in Haryana. They

demanded ransom from his father on his mobile

no.9810017260 from the victim's mobile No.9999707034

and illegally restrained him for more than 12 hours under

the fear of death. He was physically assaulted during his

detention and he was set free only after a sum of Rs.35

lacs was extracted from his father.

4. On 5.3.2011, the accused Sandeep Chikara was arrested

which unfolded the mystery of abduction and it lead to

arrest of number of accused persons (8 in all). During

the course of investigation and on the basis of a

disclosure statement of one of the accused persons

respondent no. 2 was also arrested on 28.4.2011. He was

granted bail by the impugned order by the learned

Sessions Judge by observing that the only evidence

against the respondent no. 2 is a disclosure statement of

co-accused as per the charge sheet. It was also observed

by the learned Judge that the other piece of evidence

pointed out by the IO was a missed call made by the

respondent no. 2 on 26.02.2011 to the complainant

whereupon the latter had returned the call.

5. The learned counsel for the petitioner has pointed out

that both the victim and the respondent no. 2/accused

belong to the same village Bijwasan and the accused had

helped one Rajesh Kumar @ Bharti in getting

accommodation on rent in the same village. It may be

pertinent here to mention that Rajesh Kumar @ Bharti is

a person having involvement in as many as 18 cases for

serious offences in areas around Delhi. The learned

Sessions Judge did not attach any importance to the

submissions of the learned counsel for the complainant

and observed that there was no sufficient evidence to

connect the accused with Rajesh Kumar @ Bharti and the

only evidence brought on record is the disclosure

statement and the phone call made much prior to the

date of abduction and he granted bail to the respondent

no. 2.

6. Mr. Tulsi, the learned Sr. Adv. has challenged the

impugned order passed by the learned Additional

Sessions Judge on the ground that the same is totally

arbitrary, unreasonable and capricious in as much as the

bail has been granted to the respondent no.2/accused

despite the fact that there was ample evidence which was

neither placed in full measure before the learned Trial

Court nor appreciated. The second limb of the submission

made by the learned senior counsel is that after the grant

of bail, the respondent no.2/accused either himself or

through his other family members had administered

threats to the father of the petitioner that in case they

testified against him, they will be visited with dire

consequences. Mr. Tulsi, the learned senior counsel has

contended that all the other remaining accused persons

are in custody and the respondent no.2/accused being on

bail is creating a threat to the holding of a fair trial, and

therefore, is misusing his liberty. Therefore, his bail may

be cancelled. Mr. Tulsi, has referred to number of

authorities in this regard for cancellation of his bail order

both with regard to the merits of the order as well as on

account of misuse of that liberty. These are Suresh

Kumar Somabhai Rana Vs. Ashok Kumar Harkalal

Mittal (2009) 14 SCC 292, Subodh Kumar Yadav Vs.

State of Bihar & Anr. (2009) 14 SCC 638, Panchanan

Mishra Vs. Digambar Mishra & Ors. 2005 SCC (Crl)

660, Puran Vs. Rambilas & Anr. AIR 2001 SC 2023 and

Raj Kumar Sharma & Ors. Vs. State (Delhi

Administration) AIR 1978 SC 179.

7. So far as the State is concerned, it was directed to clarify

its stand as to whether it wants the bail of the respondent

no. 2 to be cancelled or is it supporting the impugned

order.

8. In this regard, an affidavit of Ms. Chhaya Sharma, DCP

(South) has been filed wherein she has stated that they

are supporting the petition filed by the

complainant/petitioner seeking cancellation of bail of

respondent no. 2 as he is involved in a heinous crime

under Section 364A IPC i.e. kidnapping for ransom which

carries a punishment of death or life imprisonment. It is

further stated that a supplementary charge sheet has

been filed on 12.12.2011, wherein it has been pointed out

that the respondent no. 2 is a member of dreaded

criminal gang and does not deserve any kind of

sympathy. The cancellation of bail of the respondent no. 2

granted by the impugned order dated 18.07.2011 was

contested. It was stated that cancellation of a bail order

on the ground of being arbitrary is something different

than the cancellation of the bail on account of misuse of

liberty. It was stated that there have to be very cogent

and overwhelming circumstances for seeking cancellation

of the bail and the purpose of the grant of bail is only to

ensure the presence of the respondent no.2/accused to

face the trial.

9. It has been denied that in the instant case the Court has

wrongly granted the bail to him. It has been stated that

he was in custody for three months before bail was

granted to him and for this purpose this fact was also

stated that the respondent no. 2 is a student and his

career would have been ruined in case the bail had not

been granted by the Court to him. So far as the

complaint purported to have been made by the father of

the petitioner on 26.08.2011 against the respondent no. 2

is concerned, it has been stated that this is a false

complaint. It was stated that the complaint lacks

credibility. The FIR is stated to have been registered by

the father of the petitioner falsely. It was also denied by

the respondent no. 2 that there was any call record

details available with the prosecution which would prove

the linkages between the respondent no. 2 and the co-

accused persons. It has also been stated that the

supplementary charge sheet does not make a mention of

evidence which has been gathered by the prosecution

agency in this regard. Therefore, it has been contended

that the bail granted to the respondent no. 2 is perfectly

supported by the cogent reasons.

10. I have considered the submissions and have gone through

the record.

11. Before dealing with the submission of the learned

counsel, it would be worthwhile to deal with the

judgments which have been relied upon by Mr. Tulsi, the

learned senior counsel for the petitioner in support of his

case to show the scope of judicial review to which a bail

order can be cancelled by the High Court, which has been

granted by the Courts below.

12. In Suresh Kumar Somabhai Rana's case (supra), the

accused was involved in a case under Section 302 IPC

read with Section 149 IPC and the Sessions Court had

passed a detailed and reasoned order refusing to grant a

bail to the accused persons. The High Court of Gujarat,

without recording any reasons had set aside the well

reasoned order passed by the learned Trial Court and

granted the bail. The matter was taken to the Supreme

Court by the complainant and it was observed:

"In our view, such an order would be against the established principles of law and also against the interest of justice, which has serious impact on the society. In such cases, if the accused are let loose before the trial, they would have an opportunity to tamper with the evidence by their muscle/money power. It is equally true that personal liberty of the citizens should not be interfered with without following the procedure of law but in cases like this, if such persons are released by mere asking, it would affect the administration of criminal justice."

13. In Subodh Kumar Yadav's case (supra) the Magistrate

had granted the bail to the accused for an offence under

Section 498A IPC on the same day without hearing the

complainant. The learned Sessions Judge made

disparaging remarks and compelled the Court to draw an

adverse inference holding that the Magistrate had passed

order for consideration other then judicial facts of the said

case. It was observed by the Supreme Court as under:

"In fact it is now well settled that if a superior court finds that the court granting bail had acted on irrelevant material, or if there was non-application of mind or failure to take note of any statutory bar to grant bail, or if there was manifest impropriety as for example failure to hear the Public Prosecutor/complainant where required, an order for cancellation of bail can in fact be made. Further, while cancelling bail, the superior court would be justified in considering the question whether irrelevant materials were taken into consideration by the Court granting bail."

14. In Panchanan Mishra's case (supra) was a case not

dealing with before the exercise of power of grant of bail

but with a cancellation of bail under Section 437(5) read

with section 439(2) Cr.P.C. It was observed that the

purpose of cancellation of a bail is to protect the fair trial

and secure justice being done to the society by

preventing the accused who is set at liberty by the bail

order from tampering with the evidence in the heinous

crime. It was observed by the Supreme Court as under:

"We have given our careful consideration on the rival submissions made by the counsel appearing on either side. The object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in heinous crime and if there is delay in such a case the underlying object of cancellation of bail practically loses all its purpose and significance to the greatest prejudice and the interest of the prosecution. It hardly requires to be stated that once a person released on bail in serious criminal cases where the punishment is quite stringent and deterrent the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses threatening the family members of the deceased victim and also create problems of law and order situation.

15. In Puran's case (Supra), the Apex Court had observed

that one of the ground for cancellation of bail would be

where ignoring material and evidence on record a

perverse order granting bail is passed in a heinous crime

of the nature like bride burning and that too without

giving any reasons. Such an order would be against

principle of law. Interest of justice would also require

that such a perverse order be set aside and bail be

cancelled. It was also observed that it must be

remembered that such offences are on the rise and have

a very serious impact on the society, and therefore, an

arbitrary and wrong exercise of discretion by the trial

court has to be corrected. This was a case where accused

was granted in a case under Section 498A/304B IPC.

"One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the Society. Therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected.

Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has mis-

conducted himself or because of some new facts requiring such cancellation."

16. In Raj Kumar Sharma's case (Supra), it has been

stated that the overriding considerations in granting bail

which are common both in the case of Section 437(1) and

Section 439(1), are the nature and gravity of the offence;

the position and the status of the accused with reference

to the victim and the witnesses; the likelihood of the

accused fleeing from justice; of repeating the offences;

history of the case as well as of its investigation and other

relevant grounds which in view of so many variable

factors, cannot be exhaustively set out. The two

paramount considerations, viz likelihood of the accused

fleeing from justice and his position to tamper with

prosecution evidence relate to ensuring a fair trial of the

case in court of justice. It is essential that due and

proper weight should be bestowed on these two factors

apart from others.

17. A perusal of the aforesaid authorities clearly shows that

the bail can be cancelled, if it is shown to be perverse and

arbitrary or where the order has been passed with

considerations which are not germane to the passing of

the order or where factors which ought to have been

taken into consideration have not been taken into

consideration, in such contingency a the bail can be

cancelled. Secondly, the bail can be cancelled in a case

where a person who is enlarged on bail misuses his liberty

by threatening the witnesses or tamper with the

evidence.

18. In the instant case, I feel that the impugned order dated

18.07.2011 is an arbitrary and perverse order in as much

as the investigating officer did not place the complete

evidence before the learned Magistrate and further

whatever evidence was placed before him, the learned

Sessions Judge has failed to appreciate the same. The

learned Sessions Judge ought to have taken a note of the

fact that the respondent no. 2 was named in the

disclosure statement, and thereafter, this led to his

arrest. There were linkages between the kidnapping of

the petitioner and the respondent no. 2 in as much as

some telephones which were in the name of the

respondent no. 2 or the other accused persons, he had

been talking to the other five co-accused persons or some

of them for an undoubtedly long period and these have

been, prima facie, established by the learned counsel for

the petitioner during his arguments. The IO did not place

this complete information in this regard before the Court,

which granted the bail, and therefore, the Court failed to

correctly appreciate the involvement of the respondent

no. 2 in the instant case.

19. The second contention on the basis of which the learned

Sessions Judge's order was challenged for the grant of

bail to the respondent no. 2 was that he was very close to

one of the co-accused Rajesh Kumar @ Bharti and he had

arranged an accommodation for Bharti in Bijwasan

Village, Delhi. This was, prima facie, established by the

statement of the land-lord of the house of Bharti to the

effect that the respondent no. 2 had arranged the house

for Bharti and it was he who was frequently meeting

Bharti at the said address. These facts were not placed

before the learned Magistrate for his alleged involvement

with the dreaded criminally active gang who were

indulging in kidnapping for ransom. The prosecution

before this Court has presented the previous antecedents

of all the co-accused persons except the present

respondent no. 2 who seems to be a freshly recruited

person in the gang who was doing basic groundwork to

find out the potential target who would be kidnapped by

this gang or by him and handed over to the co-accused

persons for the purpose of demand of ransom. This can

be gauged from the fact that Jitender Dixit is involved in

three FIRs of serious offences of kidnapping for ransom,

robbery and offences under Section 302 IPC, Sandeep

Chhikara is involved in two cases, Sumit is involved in

seven cases, Anil Pehalwan is involved in four cases,

Manoj is involved in fourteen cases, Rajesh Kumar @

Bharti is involved in eighteen cases, Arun Kumar @ Kala

is involved in nine cases. All the co-accused persons are

in custody except the respondent no. 2 who, in my

opinion, from the evidence, prima facie presented before

this Court shows was a fresh recruit whose activities

being without any ostensible previous involvement would

have gone undetected. The offences against co-accused

persons were registered either in Sonepat, Gurgaon and

Panipat or any other district of Haryana shows that the

dreaded gang was active in Gurgaon and in and around

Delhi. This was their area of operation. So far as the

respondent no. 2 is concerned, it is not in dispute that he

is a young person and studying in South Delhi Campus of

University of Delhi. He is stated to be 21 years of age

and living in Bijwasan village, Delhi. Similarly, the victim

is also of young age studying in different college of South

Campus, Delhi University and living in Bijwasan Village.

The facts brought on record clearly show that the

respondent no. 2 was newly recruited member of the

gang of the kidnappers and seem to be doing basic

ground work to find out the potential targets which would

be kidnapped by this gang or by him and handed over to

this gang for the purpose of demand of ransom. In the

instant case, the petitioner/complainant has stated that

although a demand of Rs.3 crore initially was made, which

was ended up at Rs. 35 lakhs. I, therefore, feel that in

the order, these facts have not been taken into

consideration by the learned Sessions Judge.

20. The IO has also not played a fair role for the reasons

beyond the comprehension of this Court. It is not clear

whether he was investigating or helping the accused

persons. The order which was passed by the learned

Sessions Judge could not be said to be a valid order

based on proper appreciation of facts showing the prima

facie involvement of the respondent no. 2. The offence

under Section 364A IPC is a serious offence in as much as

the conviction of a person for the said offence may entail

punishment of life imprisonment, if not death, which it

carries. Obviously, this sentence shows the gravity of

the offence is very serious in the instant case.

21. I would have been loath to cancel the bail merely on the

basis of the non presentation of facts before the learned

Sessions Judge or on the basis of order being perverse,

but the very fact that the father of the victim has also

been threatened by the respondent no. 2 and he has

lodged a police report clearly makes the Court to believe

reasonably that continued liberty of the respondent no. 2

has been misused and is bound to be misused so as to

deter the petitioner and his other family members to

testify against the respondent no. 2 as well as the co-

accused persons who are presently in custody. In this

regard, an observation passed by the Apex Court in case

title Suresh Kumar Somabhai Rana's case (supra) is

squarely on the same footing that the Court would have

curtailed the liberty of a person when it is becoming a

threat for holding a fair trial. Almost all the judgments

which have been cited by the learned senior counsel for

the petitioner clearly make out a strong prima facie case

for the consideration of the bail of the respondent no.2.

22. In addition to this, there have been linkages established

by the prosecution during the course of arguments by

referring various telephone numbers belonging to the co-

accused persons on whom purportedly the respondent no.

2 was talking.

23. Thus, in totality of circumstances, I am of the considered

opinion that there was considerable merit in the plea of

the petitioner that the impugned order dated 18.07.2011

granting the bail to the respondent no. 2 is arbitrary and

perverse in as much as the complete material has neither

been placed before the learned Sessions Judge nor the

gravity of the offence which the respondent no. 2 caused

has been appreciated by the learned Sessions Judge.

The learned Sessions Judge has not taken into account

the criminal background of the other five co-accused

persons with whom the respondent no. 2 had come to

associate himself with the kidnapping of the present

petitioner for ransom. In addition to this, the respondent

no. 2 has misused his liberty, and therefore, is not

entitled to remain on bail. Accordingly, I set aside the

order dated 18.07.2011 granting the bail to the

respondent no. 2 and direct the respondent no. 2 to

surrender within two days in the Court of the learned

ACMM, Dwarka Courts, Delhi.

24. Expression of an opinion hereinabove shall not be treated

as an expression on the merits of the case.

V.K. SHALI, J

March 27, 2012 KP