Jaivir Sharma vs D.N. Taneja And Anr.
2013 Latest Caselaw 3061 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                CRL.M.C. 2774/2013

                                                        Decided on 19.07.2013

IN THE MATTER OF :
JAIVIR SHARMA                                                  ..... Petitioner
                          Through: Mr. K.B. Andley, Senior Advocate with
                          Mr. Jaivir Sharma, Advocate


                   versus


D.N. TANEJA AND ANR.                                       ..... Respondents
                          Through: Mr. Naveen Sharma, Addl. PP for the
                          respondent No.2/State.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (Oral)

1. The present petition has been filed by the petitioner under Section

439(2) read with Section 482 Cr.PC praying inter alia for cancellation of the

bail granted to the respondent No.1 vide order dated 05.03.2013 passed by

the learned ASJ in case FIR No.76/2012 under Sections

376/354/328/342/506/34 IPC registered at Police Station: Barakhamba

Road. The petitioner also seeks quashing of the order dated 30.05.2013

passed by the learned ASJ, rejecting his application for cancellation of the

respondent No.1's bail.

2. At the outset, Mr. Andley, Senior Advocate for the petitioner has been

requested to address the Court on the locus standi of the petitioner to file

the present petition when he is admittedly not related to the prosecutrix in

any manner and nor has he been engaged by the prosecutrix as a counsel in

the present FIR. Counsel for the petitioner responds by stating that the

petitioner is a practicing advocate and he relies upon a judgment of the

Supreme Court in the case of R. Rathinam vs. the State and Anr. reported as

AIR 2000 SC 1851 to contend that an application for cancellation of bail is

maintainable by any member of the public and that the High Court can take

suo moto notice of such a complaint and pass appropriate orders if it is

satisfied on the merits of the case.

3. Learned counsel for the petitioner states that the impugned order

dated 05.03.2013 granting anticipatory bail to the respondent No.1 deserves

interference for the reason that when arguments were being addressed on

the application filed by the respondent No.1 for grant of anticipatory bail, the

court below was not properly assisted by the Investigating Officer and

further, at that time, the trial court had not been apprised of the judgment

of the High Court dated 18.02.2013 passed in Crl.MC 552/2013 filed by the

respondent No.1 herein praying inter alia for setting aside of the order dated

17.12.2012 passed by the learned ASJ, who had upheld the order dated

17.11.2012 passed by the learned Metropolitan Magistrate summoning him

in the FIR, and for quashing of the aforesaid FIR. Lastly, learned counsel for

the petitioner submits that the respondent No.1 is a very influential person

and has high contacts and it is likely that he will tamper with the evidence

and influence the prosecutrix to depose in his favour and therefore, the bail

that has been granted to him, ought to be cancelled.

4. Per contra, learned Addl. PP opposes the present petition and states

that the facts of the case do not deserve any interference in the impugned

order dated 05.03.2013 granting anticipatory bail to the respondent No.1.

He states that the FIR was lodged on 07.06.2012 at the instance of the

prosecutrix, who had stated that the respondent No.1 had tried to molest

her. However, in the course of the investigation, the prosecutrix had

addressed a letter dated 26.07.2012 to the Investigating Officer that she did

not want to pursue the aforesaid complaint and she had expressed regret for

having levelled such allegations and wanted to close the matter. Learned

Addl. PP submits that after the investigation, a closure report had been filed

before the learned Metropolitan Magistrate. However, the learned

Metropolitan Magistrate had perused the record and was of the opinion that

there were sufficient allegations levelled in the FIR and in the statements

recorded by the Investigating Officer for taking cognizance of the offence

against the respondent No.1/accused and had directed that the accused be

summoned. Further, the learned Metropolitan Magistrate had issued a notice

to the prosecutrix, who had appeared and had stated that she did not want

to file any protest petition against the closure report.

5. Aggrieved by the aforesaid order of summoning passed by the learned

Metropolitan Magistrate, the respondent No.1 had preferred a criminal

revision petition before the learned ASJ, which was dismissed on

17.12.2012. The aforesaid order dated 17.12.2012 passed by the learned

ASJ was assailed by the respondent No.1 before the High Court by filing a

petition under Section 482 Cr.PC registered as Crl.M.C. 552/2013. The said

petition was dismissed as being devoid of merits vide judgment dated

18.02.2013. While passing the aforesaid judgment, the Court had also made

some observations with regard to the manner in which the investigation had

been conducted in the present case. Aggrieved by the aforesaid adverse

observations made by the High Court, respondent No.1 had preferred an

appeal before the Supreme Court and though the order passed by the

Supreme Court has not been placed on record, learned counsel for the

petitioner informs the Court that the Supreme Court had directed that the

observations made by the High Court in the order dated 18.02.2013 shall

not be taken note of by the courts below at any stage of the proceedings.

Learned Addl. PP states that after the aforesaid revision petition filed by the

respondent No.1 was dismissed, the Investigating Officer had continued with

the investigation and the charge-sheet is likely to be filed in the very near

future.

6. As regards the application filed by the respondent No.1 for grant of

anticipatory bail in the FIR, records reveal that the same was considered by

the learned ASJ on 05.03.2013 and after taking into consideration his

advance age and his medical condition and further, having regard to the fact

that when a notice had been issued to the complainant on the closure

report, she had stated that she did not wish to file any protest petition in

response to the cancellation report and additionally, during the investigation,

the complainant had submitted an application to the SHO, Police Station:

Barakhamba Road stating inter alia that she had regretted having made

allegations of rape against the respondent No.1 and that she did not wish to

persist with the allegations, the respondent No.1 was granted protection

under Section 438 Cr.PC.

7. Learned Addl. PP informs the Court that ever since the passing of the

aforesaid order, no report has been received with regard to any misuse or

abuse of the indulgence granted to the respondent No.1. Further, there is

no report that he has threatened the prosecutrix or any of the witnesses or

has breached any of the conditions of the anticipatory bail. He also points

out that the CD that the prosecutrix had furnished to the police had been

sent to the FSL for analysis and as per the analysis report, the said CD is not

doctored, but on its examination, the same did not reveal any molestation or

rape of the prosecutrix. The aforesaid fact was also taken note of by the

learned ASJ, while allowing the application filed by the respondent No.1 for

grant of anticipatory bail.

8. Aggrieved by the order dated 05.03.2013 granting anticipatory bail to

the respondent No.1, the petitioner herein had filed an application before the

learned ASJ for cancellation of bail. After hearing the petitioner, the learned

ASJ had observed that the application filed by him was not maintainable as

he is not related to the prosecutrix in any manner and merely because he is

a member of the Bar does not entitle him to claim a locus standi to challenge

the order granting anticipatory bail to the respondent No.1. Further, the

facts in the case of R. Rathinam (supra) as relied upon by the petitioner

were also taken note of and it was observed that the said judgment did not

have any application to the facts of the present case. The contention of the

counsel for the petitioner that material facts had been concealed at the time

of arguing the bail application of the respondent No.1 on 05.03.2013, was

also turned down by the learned ASJ, who had observed that the grounds

considered while granting bail to the respondent No.1 could not be reviewed

by him and further, the State had not challenged the grant of bail and

therefore, the allegations of the petitioner that the respondent No.1/accused

is likely to abscond or influence the witnesses, was not borne out.

9. This Court has considered the submissions made by the counsels for

the parties and has carefully examined the facts of the case in the light of

the judgment dated 18.02.2013 passed in Crl.MC 552/2013, the order dated

05.03.2013 granting anticipatory bail to the respondent No.1 as also the

order dated 30.05.2013 passed by the learned ASJ, rejecting the application

filed by the petitioner for the cancellation of the bail granted to the

respondent No.1 on 05.03.2013.

10. It may be observed at the outset that the petitioner herein has not

been able to establish his locus standi to file the present petition. He is

neither related to the prosecutrix, nor had he been engaged by her as a

counsel in the case. In fact, he is a rank outsider. Merely because the

petitioner is a practicing advocate can hardly be treated as a sufficient

ground entitling him to file the present petition, when he has failed to

demonstrate any extenuating circumstance to this Court for seeking

interference in the order dated 5.3.2013. Reliance placed by learned

counsel for the petitioner on the decision of the Supreme Court in the case

of R. Rathinam (supra) cannot be of any assistance for the simple reason

that even in the said case, the court had held that the powers conferred on

the High Court under Section 439 (2) of the Cr.PC can be invoked by the

State or the Investigating Agency or the public prosecutor and the aggrieved

party but for the Court to suo moto exercise such a power, the petitioner has

to satisfy the court and make out a fit case for doing so. In the present case,

the petitioner has not demonstrated any element of public interest for

seeking revocation of the bail order.

11. In the case of R. Rathinam (supra), the Supreme Court had referred to

the background in which the petitioners therein had approached it and had

noted that a carnage had taken place in a village in Madurai District,

resulting in the death of six persons belonging to a particular community.

Aggrieved by the order of releasing some accused on bail, a group of

seventy five advocates had challenged the correctness of the order for grant

of bail, which had been turned down by the Madras High Court. It was in the

aforesaid backdrop that the Supreme Court had opined that there was public

interest involved and the constitutional rights of the parties needed to be

settled. In the said context, it was observed that it is open to the High Court

to cancel the bail order, if it feels the reasons stated in the petition are

sufficient for doing so and therefore, such a petition ought not be rejected

outright on the ground of maintainability. This is not so in the present case.

There is no public interest involved for the petitioner to have filed the

present petition for seeking the cancellation of the bail order passed in

favour of the respondent No.1. Further, no special circumstances have been

indicated by the petitioner for this Court to suo moto exercise the powers

vested in it under Section 439(2) of the Cr.PC for the cancellation of the bail

order granted by the trial court in favour of the respondent No.1.

12. It is settled law that while examining an application for cancelation of

bail, the Court is reviewing a decision that has already been made and it

can, by and large, be permitted only if by reason of the supervening

circumstances, it would no longer be conducive to a fair trial to allow the

accused to retain his freedom during the trial (Ref: Delhi Administration vs.

Sanjay Gandhi reported as AIR 1978 SC 961). Such a power is

extraordinary in nature and must be exercised appropriately when by

preponderance of probability, it is evident that the accused is interfering with

the course of justice by either tampering with the evidence or threatening

the witnesses. (Ref: Ram Govind Upadhyay vs. Sudharshan Singh reported

as AIR 2002 SC 1475). Thus bail once granted cannot be cancelled

mechanically [Ref: Dolat Ram and Ors. vs. State of Haryana reported as

(1995) 1 SCC 349]. There must be a clear case of an abuse of the

indulgence/privilege granted to the accused which has not been established

by the petitioner in the present case.

13. Learned Addl. PP for the State has also submitted that the conduct of

the respondent No.1 has not been in breach of the order of the anticipatory

bail and nor has he extended any threats to any witness or tried to interfere

in the investigation in any manner for the State to seek cancellation of his

bail order.

14. The submission made by learned counsel for the petitioner that the

report submitted by the Investigating Officer before the learned ASJ at the

time of addressing arguments on the anticipatory bail application of the

respondent No.1 did not make a mention of the quashing petition that had

been filed by the respondent No.1 and was dismissed by the High Court on

18.02.2013, has been duly dealt with in the order dated 05.03.2013 passed

by learned ASJ. In fact a copy of the status report submitted by the

Investigating Officer at that time has been placed on record and a perusal

thereof shows that a mention of the dismissal of the quashing petition filed

by the respondent No.1 was made in the said report. For the counsel for the

petitioner to urge that the said fact has been noted in long hand in the

report as against the rest of the report which had been got typed out by the

Investigating Officer, can hardly be treated as a sufficient ground for seeking

cancellation of the bail order granted in fravour of the respondent No.1.

15. It may be emphasized that the order of taking an accused back in

custody has to be passed with great care and caution. It is an extraordinary

power vested in the court and ought to be exercised in appropriate cases

when it is quite apparent that the liberty granted to him has been abused. In

the given facts and circumstances, the Court is not inclined to entertain the

present petition, both, on the ground of lack of locus standi of the petitioner

and on merits. The petitioner has miserably failed to demonstrate as to how

the respondent No.1 has interfered in the investigation or tampered with any

witness or hampered the course of justice.

16. At this stage, learned counsel for the petitioner states that the

petitioner is actually aggrieved by the adverse remarks made by the learned

ASJ against him while passing the impugned order.

17. It may be pointed out that before the learned counsel for the

petitioner had started addressing arguments, the Court had clearly

expressed its opinion that the present petition as filed by the petitioner is

not maintainable and the learned counsel was requested to consult the

petitioner before proceeding to argue the matter. Further, the case was

passed over to enable the counsel to consult the petitioner, who was present

in Court. On the second call, learned counsel had stated that he had

instructions to argue the present petition. Now, after arguments have been

addressed at length and the above order dictated, the petitioner cannot be

heard to state that he would be satisfied if the remarks made against him in

the impugned order dated 30.05.2013, are expunged. The petitioner has

invited a speaking order from the Court on the merits of the case and

therefore the above order stands.

18. While concurring with the learned ASJ that the present petition is an

abuse of the process of the court and deserves to be dismissed for want of

locus standi and on merits, the petition is dismissed with costs of `10,000/-

imposed on the petitioner. The said costs shall be deposited with the Delhi

High Court Legal Services Committee within two week from today and proof

of payment placed on record.

19. List before the Joint Registrar for compliance of the orders on 30th

August, 2013.

                                                            (HIMA KOHLI)
JULY 19, 2013                                                  JUDGE
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