Suresh Chand vs State Nct Of Delhi & Ors.
2013 Latest Caselaw 1366 Del

$~9
*        IN THE HIGH COURT OF DELHI AT NEW DELHI


+        CRL.M.C. 2882/2012


         SURESH CHAND                          ..... Petitioner
                               Through Mr. S.M. Hussain, Adv.
                      versus
STATE NCT OF DELHI & ORS.                               ..... Respondents
                               Through Mr. Navin Sharma, APP for the State.
                                          Mr. G.P.Singh and Mr. C. Siddiqui,
                                          Advs. for R-2 to 5.
         CORAM:
         HON'BLE MR. JUSTICE KAILASH GAMBHIR

               ORDER

% 20.03.2013

1. By this petition filed under Sections 439(2) of Code of Criminal

Procedure the petitioner seeks directions to cancel the anticipatory

bail granted by the learned Additional Sessions Judge vide order dated

7th July, 2012 and 23rd July, 2012.

2. Addressing arguments on the present application, Mr. S.M. Hussain,

counsel for the petitioner submits that the petitioner was assigned duty

by the SHO P.S Sarita Vihar to serve the restrainment order dated

20th June, 2012 passed by the SDM, Defence Colony against Mr. Bal

Singh, owner of house No. H-24, Bhawani Gali, Aali Vihar, New

Delhi-44 to immediately stop the illegal and unauthorized

construction of the said property. Counsel also submits that the

petitioner along with one constable namely Shri Mukesh Dalal had

visited the said property on 1st July, 2012 at about 8.45 p.m. to serve

the restrainment order issued by Mr. M.K. Dwivedi SDE/SE. At the

time of serving the said notice, he met Mr. Bal Singh and when he

was told to sojourn the illegal construction of the said property he

started abusing the petitioner and used filthy words against him. After

hearing he conversation aloud, at that very moment his wife

Shakuntla, son Vineet Nagar and his brother Yograj also came out of

the house. Mr. Bal Singh, respondent No.2 herein then instigated and

abated all of them to beat the petitioner and broke the legs of the

petitioner so that he could not come again for executing any such

order. Respondent Nos.2 and 3 caught hold and surrounded the

petitioner and respondents No.4 and 5 brought danda and iron rod.

Both of them started mercilessly beating the petitioner with iron rod

and danda on the head shoulder, hands and legs of the petitioner,

which resulted in causing severe head injuries and petitioner, also

suffered injuries on his hands and legs. Counsel also submits that

during this vehemence and quarrel, constable Satpal who was on

duty and patrolling in the area near the place of occurrence, after

hearing about the said incident, he immediately rushed to the place of

occurrence and found that the petitioner was lying on the ground and

bleeding profusely from his head and scalp, seeing the injuries on the

hands of the petitioner he immediately took the petitioner on his

motorcycle to AIIMS Trauma Centre, New Delhi and got him

admitted. Mr. Ranvir Singh ASI of PS Sarita Vaihar recorded his

statement in hospital on 1.7.2012 and FIR No. 208/2012 was

registered on 2nd July, 2012. Counsel also submits that the petitioner

had received serious injuries on his scalp and his treatment continued

till 7th July, 2012. Counsel also submits that the treatment of the

petitioner also continued from 21st July, 2012 to 28th July, 2012 at

Escort hospital, Faridabad. The main contention raised by counsel

for the petitioner is that the learned Sessions Judge failed to consider

the serious injuries received by the petitioner at the hands of these

respondents and also the fact that the petitioner in due discharge of his

duties had visited the said property to execute the said order issued by

the learned SDM, Defence Colony. Counsel also submits that

respondent No. 2 before seeking his anticipatory bail filed a false

application on 6th July, 2012 with allegations attributing false

motives in the mind of the petitioner, asking for some enticement/

bribe. Counsel also submits that the said complaint made by

respondent No. 2 was duly enquired into by the ACP and the

allegations leveled by respondent No.2 in his said complaint turned

out to be totally false. Counsel for the petitioner further submits that

because of the petitioner having suffered serious injuries on his head,

Section 308 IPC was later added in the said FIR.

3. Counsel further submits that learned Sessions Court ignoring all

these material facts granted anticipatory bail to all these respondents

instead of directing their custodial interrogation. Counsel also urged

that these respondents did not deserve grant of anticipatory bail as

they had beaten the police official while he was discharging his

official duties. Counsel thus prays that the anticipatory bail granted

vide orders dated 07.07.2012 and 23.07.2012 should be cancelled as

the aforesaid conduct of the respondents is highly unfortunate and

felonious.

4. On the other hand, this petition has been vehemently opposed by the

counsel for the respondent Nos. 2 to 5. Counsel for respondent Nos. 2

to 5 submits that on 1.7.2012, which was a Sunday, constable

Mukesh Dalal had visited the residence of respondents at 4.00 p.m.

and told them that some notice has been issued against them to stop

the construction activity at the said property. These respondents were

also told by Mr. Mukesh Dalal to come to the police booth as notice

was lying with Head Constable Suresh Chand. Counsel further

submits that respondents had reached the police booth where they met

the petitioner Mr. Suresh Chand and he told them that notice is with

Mr. Mukesh Dalal and not with him. Counsel also submits that at that

point of time the present petitioner demanded a sum of Rs. 1.5 lakhs

as consideration and when the respondent had shown their

vulnerability in paying such a huge amount then they were told by the

petitioner that the said amount would include the share of the senior

police officials aswell and also without the payment of the said the

amount the respondents would not be allowed to carry on the

construction work. Counsel also submits that the respondents were

told by the petitioner that they should arrange the said money by that

evening and he will visit their house to collect the said money.

Counsel also submits that since these respondents were not prepared

to pay the said money, therefore, the petitioner and the said other

constable started abusing and assaulting the respondents. Counsel also

submits that the respondents did even dial the police control room

after the said assault. Counsel also submits that respondent No.2 had

also received injuries on his head in the said assault. Counsel also

submits that the Io in the case has filed the challan against the

respondent no. 4 before the juvenile justice Board and the copy of the

same has been received by the respondent no.2 and it is further clear

that the challan against the respondent nos. 2, 3 and 5 are also at the

stage of filing before the illaqa Magistrate and thus the application is

itself is premature and infructuous.

7. Counsel also submits that the present application seeking cancellation

of anticipatory bail granted to the accused persons by Counsel also

submits that anticipatory bail was only granted by the learned

Sessions Judge in favour of the respondent nos. 2 to 5 is not only

malafide in nature but also unlawful as the petitioner being a public

servant , head constable with the Delhi Police has transgressed its

authority and position by assaulting the respondents for extorting

extraneous consideration in lieu of providing license to carry on repair

activities in the residential premises of the respondents by them.

Counsel submits that on seeing the formidable circumstances and

there is no error in the order passed by the learned Sessions Judge .

Therefore, the present application filed by the petitioner is highly

misconceived, arbitrary and vindictive in nature, and deserves an

outright dismissal.

5. I have heard the counsel for the parties and perused the relevant orders

passed by the ld. Sessions Court.

6. The law is well settled that the parameters of accepting the bail are

altogether different from the parameters of cancelling the bail

already granted. The respondent has not abused the liberty of his

bail. The petitioner has not quoted any instance to prove that the

respondent tampered with or endeavoured to tamper with any

witness, posed any threat to the petitioner, tried to hide himself or

hampered the investigation or the trial of the case, as such, the

petition deserves to be dismissed.

8. Hon'ble Supreme Court in the case of State v. Sanjay Gandhi : AIR

1978 SC 961 has held that:

"12. rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of Bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial."

9. Hon'ble Supreme Court has also held in the case of Daulatram and

Ors. v. State of Haryana (1995) (1) SCC 349 that:

"4.rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very

cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail, already granted. Generally speaking, the grounds for cancellation of bail , broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial."

10. Hon'ble Rajasthan High Court has held in the case of Smt. Rajbala

v. State of Rajasthan 2005 (1) R.C.C. 289 as under:

"It is now well settled by a catena of cases of the Apex Court as well as of this Court that the grounds for cancellation of bail are distinct from the considerations for the grant of bail. The bail once granted cannot and ought not to be normally cancelled in a mechanical manner unless there are cogent and overwhelming facts and circumstances on record to do so."

11. While rejecting the application for the grant of cancellation of bail, the

Apex court observed in another case, namely, Rizwan Akbar Hussain

Syyed v. Mehmood Hussain & anr, VI (2007) SLT 594) that:

"8. ...if no condition is specifically stipulated, the accused, while on bail, is not supposed to tamper with evidence. There is no specific observation in this regard in the impugned

order. Cancellation of bail should not be done in a routine manner. Where it appears to the superior Court that the Court granting bail acted on irrelevant materials or there was non- application of mind or where Court does not take note of any statutory bar to grant of bail, order for cancellation of bail can be made. These circumstances are illustrative and not exhaustive. The Court considering the application for cancellation of bail has to take note of all relevant aspects."

12. Considering the facts of the present case in the light of the

aforesaid judgments of the Apex court, in my view, the learned trial court

rightly granted bail to the respondent nos. 2 to 5 as it cannot be lost sight

of the fact that the respondent no.2 , Bal Singh has also been injured in the

incident, and had received abrasions on his head, and his wife , Shakuntala

also has no specific role to play whereas his son/ respondent no. 4 is a

juvenile, against whom a challan has been filed by the IO before the

Juvenile Justice Board.

13. The present petition seeking cancellation of bail granted by the ld.

ASJ vide orders dated 7th July, 2012 and 23rd July, 2012 therefore stands

dismissed. However, the petitioner is directed to fully cooperate in

investigation and not to create any hindrance or impediment during the

course of investigation. The petitioner shall also not take any action to

intimidate or cause any sort of harm to the respondents.

14. With the above directions, the present petition stands disposed of. It

is ordered accordingly.

                                             KAILASH GAMBHIR, J


MARCH       20, 2013
mg