Santosh Kumar Jaiswal & Ors. vs The State & Anr.
2012 Latest Caselaw 3157 Del

*           THE HIGH COURT OF DELHI AT NEW DELHI

+                      BAIL APPL. NO.315/2012

                                            Date of Decision: 11.05.2012

SANTOSH KUMAR JAISWAL & ORS.                        .... PETITIONERS

                             Through:   Mr. R.M. Tufail     &    Mr.       A.
                                        Aggarwal, Advs.

                                   Versus

THE STATE & ANR.                                  ......RESPONDENTS

                             Through:   Mr. M.N. Dudeja, APP for the
                                        State.
                                        Mr. A.T. Rao, Adv. for the
                                        complainant.
                                        Mr. P.K. Sharma, Standing
                                        Counsel for the CBI with Mr.
                                        Uday Prakash Yadav, Adv.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. In the CBI case R.C.No. 6/2009, under Section 120B read with

Section 302, 364, 501 and 218 IPC, registered at P.S. Dalanwala,

Dehradun, 18 persons were arrayed as accused Nos. 1 to 18. The accused

at serial No. 1 to 7 were granted bail by the High Court of Uttarakhand on

20.01.2010. Aggrieved therefrom, the complainant, who is the father of

the deceased, filed two petitions before the Hon'ble Supreme Court. One

of those petitions was for transfer of the case from Dehradun and another

for cancellation of bail of these accused persons No. 1 to 7. Hon'ble

Supreme Court, vide order dated 17.3.2011 set aside the order of granting

bail to these accused Nos. 1 to 7 and also transferred the said case from

Dehradun to Delhi. The said decision is reported as Ravindra Pal Singh

Vs. Ajit Singh and Another, (2011) 4 SCC 238. The instant Bail

Application No. 315/2012 has been filed in this court by these accused

Nos. 1 to 7 for grant of regular bail.

2. Accused Nos. 8 to 18 in the aforesaid FIR were granted bail by the

learned Sessions Judge, Dehradun on the plea that they were charge-

sheeted for the bailable offence.

3. It is submitted by learned counsel for the petitioners that after the

transfer of the case to New Delhi, the present petitioners who are accused

Nos. 1 to 7 have surrendered and are in judicial custody since 6 th April,

2011. It is submitted that the case of the prosecution is false and baseless

in as much as the deceased himself had stayed at Dehradun dharamshala

along with his friends under concealed names. It is submitted that the

deceased had entered into a criminal conspiracy to commit robbery in the

house of Kavita Saxena. It is further submitted that none of the 29

witnesses examined so far have supported the prosecution case and that

some of those have turned hostile, but none has alleged to be under the

influence or threatened by the petitioners. It is lastly submitted that the

trial shall take couple of years and no useful purpose would be served to

keep the petitioners in custody.

4. On the other hand, learned APP for the State submits that the two

applications filed by these petitioners under Section 439 Cr.P.C. have

been dismissed by the Special Judge vide his detailed order dated 9 th

February, 2012 and there is no change of any circumstance since then. It

was also submitted that the hon'ble Supreme Court has also cancelled the

bail of Petitioners/accused persons vide order dated 22nd March, 2011 and

that on 2nd June, 2011 the charges have already been framed against these

petitioners under Sections 120B/302/306/201/218 IPC and that as many

as 36 prosecution witnesses have already been examined. The bail

granted to these petitioners by the Uttrakhand High Court on 20th January,

2010 was not only cancelled by the hon'ble Supreme Court, but the

displeasure was also expressed by the Apex Court by observing that the

Uttrakhand High Court committed serious error in granting bail to the

Petitioners. Further, the Supreme Court also took note of the serious

nature of the allegations against the Petitioners, who are police officials

and also the possibility of their exerting undue influence on the

prosecution witnesses.

5. The aforenoted decision of the Hon'ble Supreme Court is found

reported in Ravinder Pal Singh(supra). After the aforesaid order of the

Hon'ble Supreme Court, it would not be appropriate to entertain the plea

that the offence against the petitioners was not serious or that no prima

facie case was made out against them or that the deceased was himself to

be blamed or faulted. From the impugned order, it is noted that as many

as 33 prosecution witnesses have been examined and even some of the

witnesses who have made supporting statements under Section 164

Cr.P.C., have turned hostile. In this regard, it was submitted by the

learned Standing Counsel for the CBI that some of the accused persons

are at large and they are influencing or exercising duress upon the

witnesses after grant of protection by this Court vide order dated 29 th

November, 2011. Specific reference is made to the statement of Mahipal

Singh Rawat who has turned hostile in his statement made on 25th April,

2012. The Special Judge who is recording the evidence has also

specifically noted that the apprehension of the prosecution regarding the

accused persons exercising duress on the remaining witnesses was well

founded. The fact that none of the witnesses had complained against the

petitioners in this regard would have no bearing, given the fact that all the

accused persons are police officials. There seems to be reasonable

apprehension that the accused persons were in command and capable of

influencing the witnesses, else there would not have been any reason for

the witnesses, who have made their statements under Section 164 Cr.P.C.

supporting the prosecution case, turning hostile in their cross-

examinations.

6. After the passing of the order by the Hon'ble Supreme Court, the

fact situation is the same and there being no change of any fact or

circumstance except that the charges have been framed and some of the

witnesses have been examined, and some of the witnesses have turned

hostile. However, it cannot be said that the witnesses have not supported

the prosecution case or absolved the petitioners. The fact that the trial

was to take some time to conclude, was also not a ground to grant bail to

the petitioners. There are catena of judgments in this regard and

reference can be made to Kalyan Chandra Sarkar Vs. Rajesh Ranjan,

AIR 2004 SC 1866.

7. The case is at the crucial stage of trial and seem to be going at

satisfactory pace. In view of the entire factual matrix of the case, it is not

a fit case to admit the petitioners on bail.

8. This bail application is dismissed.

M.L. MEHTA, J MAY 11, 2012/dk