Delhi High Court
Ankit Sharma vs State Of Nct Of Delhi & Another on 26 May, 2014
Author: V.P.Vaish
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 22nd May, 2014
% Date of Decision: 26th May, 2014
+ CRL.M.C. 1542/2014
ANKIT SHARMA ..... Petitioner
Through: Mr. D.R. Jain & Mr.Neeraj Jain,
Advs.
versus
STATE OF NCT OF DELHI & ANOTHER ..... Respondents
Through: Mr. Siddharth Luthra, ASG with
Mr.Pramod Kumar Dubey, Adv.
for the State
I.O. Insp. Dinesh Kumar.
Mr. Joy Basu, Sr. Adv. with
Mr.Kapil Sankhla & Mr. D.S.
Kohli, Advs. for R-2
+ CRL.M.C. 1766/2014
STATE OF NCT OF DELHI ..... Petitioner
Through: Mr.Siddharth Luthra, ASG with
Mr.Pramod Kumar Dubey, Adv.
for the State
I.O. Insp. Dinesh Kumar.
versus
GOPAL GOYAL KANDA ..... Respondent
Through: Mr. Joy Basu, Sr. Adv. with
Mr.Kapil Sankhla & Mr. D.S.
Kohli, Advs.
Crl.M.C. No. 1766/2014 & Crl.M.C. No.1542/2014 Page 1 of 24
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH
JUDGMENT
1. The petitioner Ankit Sharma has filed petition under Section
439(2) read with Section 482 of the Code of Criminal Procedure
(hereinafter referred to as „Cr.P.C.‟) for cancellation of bail granted to
Gopal Goyal Kanda in case FIR No.178/2012 registered at PS Bharat
Nagar, Delhi by learned Additional Sessions Judge (North West),
Rohini Courts, Delhi vide order dated 04.03.2014.
2. State of NCT of Delhi has filed petition under Section 482
C.P.C. bearing Crl.M.C. No.1766/2014 for quashing of order dated
04.03.2014 passed by learned Additional Sessions Judge (North West),
Rohini Courts, Delhi whereby bail was granted to the respondent.
3. Since both the petitions have arisen out of FIR No.178/2012
registered at PS Bharat Nagar and are against common order dated
04.03.2014 passed by learned Additional Sessions Judge (North West),
Rohini Courts, Delhi, therefore, both the petitions are disposed of by
this common order.
4. Shorn off unnecessary details, the facts of the case are that the
deceased (name of victim is being withheld hereinafter keeping in light
the provisions of Section 228A IPC) allegedly committed suicide on
the intervening night of 4-5th August, 2012 at her residence House
No.4-C, Block No.1, Pocket-B, Ashok Vihar, Phase-III, Delhi. The
deceased left two suicide notes purported to be dated 04.05.2012 and
04.08.2012 wherein, she held respondent No.2 and co-accused
responsible for compelling her to end her life. On 05.08.2012,
Smt.Anuradha Sharma, mother of the deceased lodged FIR
No.178/2012 under Sections 306/34 IPC. The respondent, Gopal
Goyal Kanda was arrested on 07.08.2012 and co-accused Aruna
Chadha was arrested on 08.08.2012. On completion of investigation,
charge-sheet for the offence under Sections
306/506/201/120B/466/467/468/469/471/34 IPC and Section 66A of
IT Act was filed. Thereafter supplementary charge-sheet was filed
against Chanshivroop Singh. The respondent moved an application for
anticipatory bail bearing Bail Appl. No.5677/12 which was dismissed
by learned Additional Sessions Judge-II, Outer District, Rohini Courts,
Delhi vide order dated 09.08.2012. The respondent moved another
application seeking anticipatory bail bearing Bail Appl. No.1188/2012
before this Court which was dismissed by this Court vide order dated
17.08.2012.
5. The learned Additional District and Sessions Judge, N/W
District, Rohini, Delhi passed an order for framing of charge for the
offences under Sections 109/466/471/468/469/306/376/377 read with
Section 120B IPC and Section 66 of IT Act read with Section 120B
IPC against both the accused vide order dated 10.05.2013. The co-
accused Aruna Chadha challenged order dated 10.05.2013 and filed
Crl.Rev.P. No.305/13 before this Court. Vide order dated 25.07.2013,
this Court partly allowed the revision petition to the extent that the
framing of charge for the offence punishable under Section 376/109
and Section 377/109 IPC was set aside.
6. The co-accused, Aruna Chadha moved an application seeking
clarification of order dated 25.07.2013 passed by this Court in
Crl.M.A. No.14966/2013 and 14965/2013 and in Crl.Rev.P.
No.305/2013. The said applications were disposed of by this Court
vide order dated 22.11.2013 and it was observed that the charges for
the offence under Sections 376/377 IPC are set aside qua both the
accused persons.
7. Vide impugned order dated 04.03.2014, passed by learned
Additional Sessions Judge (North West), Rohini Courts, Delhi, the
respondent was admitted to regular bail. On 04.03.2014, an
application was filed by State on behalf of brother of victim for
institution of an inquiry against Dr.Anuj Mittal. It was submitted on
behalf of respondent that bail application may be decided on its own
merits. The Trial Court observed that the report on the said
application, filed by brother of victim be taken up on 15.03.2014 since
the issue in the said application was regarding the treatment for the
health of wife of the accused.
8. Learned ASG contended that the respondent moved an
application for bail bearing Bail Appl. No.7037/2012 which was
dismissed by Shri S.K. Sarvaria, District and Sessions Judge/Incharge
N/W, Rohini Courts, Delhi vide order dated 20.09.2012. He further
submits that the petitioner moved an application under Section 439
read with Section 482 Cr.P.C. bearing Bail Appl. No.1565/2012 which
was dismissed by this Court vide order dated 19.11.2012. He also
submits that the respondent preferred a petition for Special Leave to
Appeal (Crl.) No.10133/2012 against order dated 19.11.2012 before
Hon‟ble Supreme Court of India. Vide order dated 22.03.2013,
Special Leave Petition was dismissed by Hon‟ble Supreme Court of
India. He pertinently submits that the respondent was admitted to
interim bail till 04.10.2013 by Additional Sessions Judge/Spl. FTC
(N/W District), Rohini Courts, Delhi vide order dated 04.09.2013.
Thereafter, the request of respondent for extension of interim bail
which was granted vide order dated 04.09.2013, was dismissed by
Additional Sessions Judge, N/W District, Delhi vide order dated
03.10.2013. He further submits that the respondent moved an
application under Section 439 Cr.P.C. which was dismissed by learned
Additional Sessions Judge, Rohini, Delhi vide order dated 14.10.2013.
He urged that the application for anticipatory bail filed on behalf of the
respondent was dismissed by learned Additional Sessions Judge,
Rohini, Delhi on 04.03.2014. There is no change of circumstances for
grant of bail to the respondent.
9. Learned ASG for the State also submitted that evidence was
started in May 2013 and the respondent is trying to delay the trial. He
has also pointed out that co-accused Chanshivroop Singh was declared
proclaimed offender. Mr.Luthra, learned ASG for the State further
submitted that the respondent moved an application for bail with
uncleaned hands. The respondent had filed medical record i.e. OPD
slips regarding ill health of the wife of respondent/accused namely,
Smt.Saraswati Devi. As per purported medical record of the wife of
respondent, she was allotted OPD slip bearing No.356250/2012 for her
visits dated 07.09.2012, 21.09.2012, 19.10.2012, 21.11.2012,
19.12.2012, 23.01.2013, 20.02.2013, 22.03.2013, 17.04.2013,
22.05.2013, 26.06.2013, 24.07.2013, 16.08.2013 and another OPD
slips bearing No.301884/2013 for visits dated 23.08.2012, 07.09.2013,
21.09.2013, 19.10.2013, 04.11.2013 and 31.12.2013 issued by Deen
Dayal Upadhyay Hospital. However, on verification from the hospital,
it was revealed that OPD slip bearing No.356250/2012 was issued in
the name of one Meera Devi and not in the name of the wife of
respondent/accused. On inquiry, it was revealed that no record existed
for OPD slip bearing No.301884/2013. According to learned ASG for
the State, the very genuineness of the claims of sickness of the wife of
respondent is questionable. He also pointed out that there is no
reference of any test being conducted as per medical records relied
upon by the respondent and the diagnosis made by the doctor. The
treatment continued for about 1 ½ years but the doctor never advised
her for any test for recording of blood pressure or conduction of ECG,
X-ray, Echo, USG, CT scan or MRI. The respondent had produced
false medical record with a view to facilitate his release on bail. The
ATO, PS Bharat Nagar issued a notice under Section 91 Cr.P.C. for
conducting inquiry regarding the treatment of the wife of the
respondent. It is also submitted that on 04.03.2014, an application
moved by the State before learned Additional Sessions Judge for
institution was filed for inquiry against Dr. Anuj Mittal in order to
verify the correctness of medical record which was placed by the
accused in support of his application for bail, but the said request was
declined by the trial Court and the respondent was admitted to bail.
10. Learned ASG for the State urged that the material collected
during investigation shows that respondent played an important part in
the commission of crime. The respondent avoided his arrest when the
FIR was registered. The respondent destroyed vital pieces of material
evidence including two mobile phones which was earlier used by him.
The respondent is a powerful and influential person as he is a member
of Legislative Assembly and is a man of means and substance. There
is likelihood that the respondent may tamper with the evidence.
11. Learned ASG for the State has relied upon judgment in Kishore
Samrite vs. State of U.P. & Ors., (2013) 2 SCC 398 and Kalyan
Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav &Anr., (2004)
7 SCC 528.
12. Learned counsel for the petitioner, Ankit Sharma, submitted that
earlier application seeking bail filed by the respondent was dismissed
by learned Additional Sessions Judge, Rohini, Delhi. The application
for anticipatory bail as well as regular bail filed by the respondent was
dismissed by this Court as there was no change in circumstances and
there was no fresh ground for grant of bail. He has also pointed out
that the request of brother of the deceased for sending the medical
papers of wife of the respondent for verification was declined by the
Trial Court and the respondent was admitted to bail without waiting for
the verification report of the medical documents of the respondent.
13. Learned counsel for the petitioner has relied upon judgments in
State of Maharashtra vs. Captain Buddhikota Subha Rao, AIR
1989 SC 2292, Kishore Samrite vs. State of U.P. &Ors., (2013) 2
SCC 398, State through CBI vs. Amarmani Tripathi, VII(2005) SLT
160, Prahlad Singh Bhati vs. NCT of Delhi & Anr., AIR 2001 SC
1444, Gurcharan Singh & Ors. vs. State (Delhi Administration),
AIR 1978 SC 179,A.V. Papayya Sastry vs. Govt. of A.P. & Ors.,
(2007) 4 SCC 221 and Kalyan Chandra Sarkar vs. Rajesh Ranjan
@ Pappu Yadav &Anr., (2004) 7 SCC 528.
14. Per contra, learned Senior Counsel for the respondent/accused
urged that the accused surrendered on 17.08.2012 and the respondent
remained in judicial custody except the period of interim bail, for a
period of one month granted by Trial Court vide order dated
04.09.2013. The respondent had not misused the liberty of interim bail
and had surrendered after expiry of the period of interim bail.
15. Learned Senior Counsel for the respondent also urged that the
petitioner filed a Petition for Special Leave to Appeal (Crl.)
No.10133/2012 which was dismissed by Hon‟ble Supreme Court of
India and the respondent was permitted to move an application for bail
before the Court in seisin of the trial. The charges were framed by
learned trial Court on 10.05.2013. Thereafter, co-accused filed
revision petition against the order on charge i.e. Crl. Rev.P.
No.305.2013. Vide order dated 25.07.2013, the offences under
Sections 376/109 and Section 377/109 were set aside by this Court.
Vide order dated 22.11.2013 on an application filed by co-accused
Aruna Chadha, this Court clarifies that the charges for the offence
under Section 376/109 and 377/109 IPC were set aside qua both the
accused persons. Thereafter amended charge was framed by the Trial
Court.
16. Learned Senior Counsel for the respondent further submitted
that the application is based on conjectures. There is no allegation of
violation of any of the conditions imposed by the Trial Court. He also
submitted that the delay in trial is not attributable to the respondent.
He also submitted an application under Section 309 Cr.P.C. was filed
on behalf of the State. He has referred to order dated 03.12.2012
passed by learned ACMM/NW, Rohini, Delhi wherein it was observed
that there is not even a single adjournment caused on the part of the
Court, even the efforts were made to proceed in the matter almost on
day to day basis. It was also observed that a perusal of record reveals
that not on a single day of hearing the counsels for the accused were
unavailable. Counsel for the accused were available on each and every
date of hearing since the filing of charge-sheet. It was also observed
that on few days of hearing, learned Special Public Prosecutor for the
State was not present and on some dates, the Investigating Officer was
absent. According to him, the delay is on the part of the prosecuting
agency. He also pointed out that there are strictures passed by
Additional Chief Metropolitan Magistrate, Rohini, Delhi as well as by
Shri M.C. Gupta, learned Additional Sessions Judge, Rohini, Delhi.
17. Learned counsel for the respondent has relied upon judgments in
Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC
40, H.B. Chaturvedi vs. CBI, 2010 (171) DLT 223, Avtar Singh vs.
State of Punjab, (2010) 15 SCC 529, Laloo Prasad alias Laloo
Prasad Yadav vs. State of Jharkhand, (2002) 9 SCC 372,Deepak
Shubhashchandra Mehta vs. CBI & Anr., (2012) 4 SCC 134, Dolat
Ram & Ors. vs. State of Haryana, (1995) 1SCC 349, Ramcharan vs.
State of M.P., (2004) 13 SCC 617, Nityanand Rai vs. State of Bihar
& Anr., (2005) 5 SCC 178, Hazari Lal Das vs. State of West Bengal
& Anr.,(2009) 10 SCC 652, Jai Kumar vs. Balhari & Anr., II(2011)
SLT 302, Rahmita vs. State & Ors., I(2012) VIII AD (Delhi)376,
Govind Narain Johari vs. State & Anr., 2013 V AD (Delhi)179 and
Suresh Kalmadi vs. CBI, 2012 (187) DLT 575
18. I have bestowed my thoughtful consideration to the submissions
made by learned ASG for the State, counsel for the petitioner Ankit
Sharma and senior counsel for the respondent.
19. In Sanjay Chandra's case (supra) in para 19 of the judgment it
was observed that earlier application filed on behalf of the accused
before framing of charges was dismissed by the Supreme Court of
India. After framing of charges and commencement of trial, the
application cannot be compared with the earlier order and it cannot be
said that there are no change of circumstances. At this juncture, it is
relevant to reproduce the observations in the said judgment:-
"21. In bail applications, generally, it has been laid
down from the earliest times that the object of bail is
to secure the appearance of the accused person at his
trial by reasonable amount of bail. The object of bail
is neither punitive nor preventative. Deprivation of
liberty must be considered a punishment, unless it is
required to ensure that an accused person will stand
his trial when called upon. The courts owe more than
verbal respect to the principle that punishment begins
after conviction, and that every man is deemed to be
innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that
detention in custody pending completion of trial could
be a cause of great hardship. From time to time,
necessity demands that some unconvicted persons
should be held in custody pending trial to secure their
attendance at the trial but in such cases, "necessity" is
the operative test. In this country, it would be quite
contrary to the concept of personal liberty enshrined
in the Constitution that any person should be punished
in respect of any matter, upon which, he has not been
convicted or that in any circumstances, he should be
deprived of his liberty upon only the belief that he
will tamper with the witnesses if left at liberty, save in
the most extraordinary circumstances.
23. Apart from the question of prevention being
the object of refusal of bail, one must not lose sight of
the fact that any imprisonment before conviction has a
substantial punitive content and it would be improper
for any court to refuse bail as a mark of disapproval of
former conduct whether the accused has been
convicted for it or not or to refuse bail to an
unconvicted person for the purpose of giving him a
taste of imprisonment as a lesson.
24. xxxxxxxx
25. The provisions of CrPC confer discretionary
jurisdiction on criminal courts to grant bail to the
accused pending trial or in appeal against convictions;
since the jurisdiction is discretionary, it has to be
exercised with great care and caution by balancing the
valuable right of liberty of an individual and the
interest of the society in general. In our view, the
reasoning adopted by the learned District Judge,
which is affirmed by the High Court, in our opinion,
is a denial of the whole basis of our system of law and
normal rule of bail system. It transcends respect for
the requirement that a man shall be considered
innocent until he is found guilty. If such power is
recognised, then it may lead to chaotic situation and
would jeopardise the personal liberty of an individual.
26. xxxxx
27. This Court, time and again, has stated that bail
is the rule and committal to jail an exception. It has
also observed that refusal of bail is a restriction on the
personal liberty of the individual guaranteed under
Article 21 of the Constitution.
xxxxxxxxxxx
40. The grant or refusal to grant bail lies within the
discretion of the court. The grant or denial is
regulated, to a large extent, by the facts and
circumstances of each particular case. But at the same
time, right to bail is not to be denied merely because
of the sentiments of the community against the
accused. The primary purposes of bail in a criminal
case are to relieve the accused of imprisonment, to
relieve the State of the burden of keeping him,
pending the trial, and at the same time, to keep the
accused constructively in the custody of the court,
whether before or after conviction, to assure that he
will submit to the jurisdiction of the court and be in
attendance thereon whenever his presence is required.
41. This Court in Gurcharan Singh v. State (Delhi
Admn.) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41 : AIR
1978 SC 179] observed that two paramount
considerations, while considering a petition for grant
of bail in a non-bailable offence, apart from the
seriousness of the offence, are the likelihood of the
accused fleeing from justice and his tampering with
the prosecution witnesses. Both of them relate to
ensure the fair trial of the case. Though, this aspect is
dealt by the High Court in its impugned order, in our
view, the same is not convincing.
42. When the undertrial prisoners are detained in
jail custody to an indefinite period, Article 21 of the
Constitution is violated. Every person, detained or
arrested, is entitled to speedy trial, the question is:
whether the same is possible in the present case.
20. In Kalyan Chandra Sarkar's case (supra), it was held:-
"8. Mr K.T.S. Tulsi, learned Senior Counsel
appearing for the first respondent contended that the
observation of this Court in its judgment dated 25-7-
2001 [Rajesh Ranjan v. State of Bihar, (2000) 9 SCC
222] that while granting bail under Section 439 of the
Code the High Court is also bound by the conditions
mentioned in Section 437(1)(i) of the Code is per
incuriam being contrary to the wording of the section
itself. He submitted that the observations of this
Court in the said judgment that the conditions found
in Section 437(1)(i) are sine qua non for granting bail
under Section 439 is arrived at by this Court on a
wrong reading of that section. He further submitted
that the power of the Sessions Court and the High
Court to grant bail under Section 439 is independent
of the power of the Magistrate under Section 437 of
the Code. Learned counsel also pointed out that
Section 437 imposes a jurisdictional embargo on
grant of bail by courts other than the courts
mentioned in Section 439 of the Code in non-bailable
offences, and such a restriction is deliberately
omitted in Section 439 of the Code when it comes to
the power of the High Court or the Court of Session
to grant bail even in non-bailable offences. In this
regard, he placed reliance on a judgment of the High
Court of Madhya Pradesh delivered by Faizanuddin,
J., as His Lordship then was, in Badri Prasad Puran
Badhai v. Bala Prasad Mool Chand Sahu [1985
MPLJ 258] ."
21. In Ram Charan's case (supra) relied upon by counsel for the
respondent, it was held:
"4. It is not a case of the State before this Court nor
was it before the High Court that the appellant
abused, in any manner, the order suspending his
sentence pending appeal and directing his release on
bail. It is well settled that different considerations
have to be weighed while considering an application
for grant of bail and while considering an application
for cancelling the bail already granted. It is apparent
from the impugned order cancelling bail that the bail
was cancelled on reappreciation of the facts of the
case. In the order dated 11-1-2002, sentence was
directed to be suspended noticing the submission of
the counsel for the appellant that the overt act
attributed to him in evidence before the Court was
wholly contradictory to what was stated by the
witnesses in their statements before the police. In the
impugned order, the High Court has noticed on a
perusal of evidence that the deceased had died of
several cutting and stab wounds and the appellant is
attributed to have given knife-blows to the deceased
and it is in this context, the impugned order mentions
that the order for bail passed on 11-1-2002 was based
on some misapprehension of factual position.
5. The order of bail can be cancelled on existence of
cogent and overwhelming circumstances but not on
reappreciation of evidence as was done by the High
Court. No supervening circumstances have been
brought to our notice which may warrant the
recalling of the order dated 11-1-2002. The principles
that have to be kept in view for recalling the order of
bail are set out in Dolat Ram v. State of
Haryana [(1995) 1 SCC 349 : 1995 SCC (Cri) 237]."
22. In Dolat Ram's case (supra), it was held:-
"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 the 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. These principles, it appears,
were lost sight of by the High Court when it decided
to cancel the bail, already granted. The High Court it
appears to us overlooked the distinction of the factors
relevant for rejecting bail in a non-bailable case in
the first instance and the cancellation of bail already
granted."
23. It is a settled law that bail granted can be cancelled on the ground
which has arisen after the bail was granted. It is generally presumed
that at the time of hearing of the bail application, the prosecution has
raised all possible grounds which could go against the accused in the
matter of bail and, therefore, when once bail has been granted to the
accused, the prosecution cannot have the bail cancelled on some
circumstances which may have existed before the grant of bail.
24. The ground of cancellation of bail and grounds of rejection of
bail are two different circumstances and hence the approach of the
Court should also be different. At the time of hearing the bail
application, the Court looks at the possibilities of the violation of bail
conditions and the Court has to be more open and flexible, whereas
while hearing the cancellation application, the Court has to be more
rigid and it has to examine not only the possibility of violations but
whether the actual violation has taken place or not. The Court should
be more rigid here and actual proof of violation is required.
25. It is pertinent to mention here that while dismissing Special
Leave to Appeal (Crl.) No.10133/2012, Hon‟ble Supreme Court of
India has observed that the petitioner if so advised may file an
application for bail before the Court in seisin of the trial. In case such
an application is filed, the Court in seisin of the trial shall consider and
dispose of the same on its own merit.
26. In the instant case, the earlier application for bail filed by the
petitioner was dismissed before framing of the charges. After framing
of amended charges on 06.12.2013 and commencement of trial, this
was first application under Section 439 Cr.P.C. filed by
respondent/accused. In view of law laid down in Sanjay Chandra's
case (supra), the application for bail cannot be compared with the
earlier orders and cannot be said that there are no change of
circumstances.
27. As regards, medical certificate submitted by the respondent, it
may be mentioned that the respondent was not admitted to bail on
medical grounds of the wife of respondent. He was admitted to bail by
the trial Court after considering the facts and circumstances of the case.
There is no allegation that respondent has violated the conditions of bail
granted to the respondent. Moreover, the State has filed an additional
affidavit dated 29.04.2014 of DCP, North West District, Delhi Police.
Along with the additional affidavit, copy of enquiry report conducted
by the Enquiry Committee comprising of Dr.P.K. Pathak, HOD
(Medicine), Dr.A.K. Garg, CMO (SAG) Medicine and Dr.Rati Makkar,
HOD Skin Deptt. was filed. The Enquiry Committee opined that
treatment records provided and the statement of Dr.Anuj Mittal was
reviewed by the committee which is of the opinion that the treatment
provided by Dr.Anuj Mittal was adequate and justified. Mismatch in
the number and name in the first OPD registration slip can be due to
some unexplained technical flaw in the registration process.
28. No doubt, the offence with which respondent/accused is charged
is serious in nature, but every accused is presumed innocent until
proven guilty beyond reasonable doubt and every accused person has
the right to enjoy the bail granted to him unless there is evidence to
show the abuse of this right given to him. It is re-emphasized by this
Court that at the time of dealing with the question of cancellation of
bail of an accused, the only issue which is germane is whether the
accused has misused the conditions of bail or tampered with the
investigation or the evidence or not.
29. In the instant case, no incriminating evidence has been brought
by the petitioner which could create an adverse opinion regarding the
conduct of respondent after the grant of bail.
30. The power of cancellation of bail must be exercised with care
and circumspection of cogent and overwhelming circumstances which
are necessary for an order seeking cancellation of bail. Where there is
no violation of the terms of order granting bail, cancellation is not
justified. The bail already granted should not be cancelled in a routine
manner as it jeopardize personal liberty of the person. The petitioner,
Anikit Sharma, has not been able to show any supervening
circumstance which would reflect that the liberty granted to the
respondent was misused.
31. In the light of aforesaid discussion, the petition filed by petitioner
Ankit Sharma as well as petition filed by the State are dismissed.
Crl.M.A. No. 7398/2014 in CRL.M.C. 1766/2014
32. This is an application filed by the respondent herein for issuance
of appropriate direction restraining dissemination of any information in
relation to case FIR No.178/2012 under Sections 306/506/201/120B
read with Section 34 IPC and Section 66 of the I.T. Act registered at
P.S. Bharat Nagar, Delhi till conclusion of the trial.
33. Learned counsel for respondent/applicant submitted that charges
for the offences under Section 376/109 IPC and 377/109 IPC were
dropped by this Court in Crl.Rev.P.No.305/2013 vide order dated
25.7.2013. Thereafter the application for clarification was filed and
vide order dated 22.11.2013, it was observed that the order framing
charges under Section 376/109 and 377/109 IPC were set aside qua
both the accused persons. Thereafter, amended charges were framed
by the trial court on 06.12.2013. Counsel for the petitioner/applicant
also submitted that even after the charges under Sections 376/109 and
377/109 were set aside, it was published in India T.V. dated
05.05.2014 that the respondent/applicant was involved in sex scandal
case. He has also pointed out that in the newspaper Punjab Kesari
dated 03.05.2014 it was published that respondent/applicant was
involved in a murder case.
34. Learned counsel for the applicant urged that because of rampant
media report, imputing the applicant for the issues of murder and sex
scandal the applicant is prejudiced which may result in denial of fair
trial.
35. On the other hand, Mr. P.K. Dubey, learned APP for the State
submitted that no statement was made by the State or investigating
agency to the media which is likely to prejudice the interest of the
applicant. No prejudice has been shown by the applicant and the
application is not maintainable.
36. In Naresh Shridhar Mirakjar & Ors. vs. State of
Maharashtra and Anr. AIR 1967 SC 1. it was held:
"29. We have referred to these decisions by way of
illustration to emphasise the point that it would be
unreasonable to hold that a court must hear every case
in public even though it is satisfied that the ends of
justice themselves would be defeated by such public
trial. The overriding consideration which must
determine the conduct of proceedings before a court is
fair administration of justice. Indeed, the principle that
all cases must be tried in public is really and
ultimately based on the view that it is such public trial
of cases that assists the fair and impartial
administration of justice. The administration of justice
is thus the primary object of the work done in courts;
and so, if there is a conflict between the claims of
administration of justice itself and those of public
trial, public trial must yield to administration of
justice. In none of the cases to which we have referred
was it expressly held that the court does not possess
inherent jurisdiction to hold a trial in camera if it is
satisfied that the ends of justice required the adoption
of such a course.
30. If the High Court thus had inherent power to hold
the trial of a case in camera, provided, of course, it
was satisfied that the ends of justice required such a
course to be adopted, it would not be difficult to
accept the argument urged by the learned Attorney-
General that the power to hold a trial in camera must
include the power to hold a part of the trial in camera,
or to prohibit excessive publication of a part of the
proceedings at such trial. What would meet the ends
of justice will always depend upon the facts of each
case and the requirements of justice. In a certain case,
the Court may feel that the trial may continue to be a
public trial, but that the evidence of a particular
witness need not receive excessive publicity, because
fear of such excessive publicity may prevent the
witness from speaking the truth. That being so, we are
unable to hold that the High Court did not possess
inherent jurisdiction to pass the impugned order. We
have already indicated that the impugned order, in our
opinion, prevented the publication of Mr Goda's
evidence during the course of the trial and not
thereafter."
37. In the case of Surya Prakash Khatri vs. Madhu Trehan
2001(92) DLT 665 Full Bench of this Court in para 23 of the judgment
has held as under:
"23. It is thus needless to emphasise that a free and
healthy press is indispensable to the functioning of a
true democracy. In a democratic set up there has to be
an active and intelligent participation of the people in
all spheres and affairs of their community as well as
the State. It is their right to be kept informed about
current political, social, economic and cultural life as
well as the burning topics and important issues of the
day in order to enable them to consider and form
broad opinion about the same and the way in which
they are being managed, tackled and administered by
the Government and its functionaries. To achieve this
objective the people need a clear and truthful account
of events, so that they may form their own opinion
and offer their own comments and viewpoints on such
matters and issues and select their further course of
action. The primary function, therefore, of the press is
to provide comprehensive and objective information
of all aspects of the country's political, social,
economic and cultural life. It has an educative and
mobilising role to play. It plays an important role in
moulding public opinion and can be an instrument of
social change. It may be pointed out here that
Mahatma Gandhi in his autobiography has stated that
one of the objectives of the newspaper is to
understand the proper feelings of the people and give
expression to it; another is to arouse among the people
certain desirable sentiments; and the third is to
fearlessly express popular defects. It therefore turns
out that the press should have the right to present
anything which it thinks fit for publication. But it has
to be remembered that this freedom of press is not
absolute, unlimited and unfettered at all times and in
all circumstances as giving an unrestricted freedom of
speech and expression would amount to an
uncontrolled license. If it were wholly free even from
reasonable restraints it would lead to disorder and
anarchy. The freedom is not to be misunderstood as to
be a press free to disregard its duty to be responsible.
In fact, the element of responsibility must be present
in the conscience of the journalists. In an organized
society, the rights of the press have to be recognised
with its duties and responsibilities towards the society.
Public order, decency, morality and such other things
must be safeguarded. The protective cover of press
freedom must not be thrown open for wrong doings. If
a newspaper publishes what is improper,
mischievously false or illegal and abuses its liberty it
must be punished by Court of law. (See. In re Harijai
Singh and another, AIR 1997 SC 73). The editor of a
newspaper or a journal has a greater responsibility to
guard against untruthful news and publications for the
simple reasons that his utterances have a far greater
circulation and impact than the utterances of an
individual and by reason of their appearing in print,
they are likely to be believed by the ignorant. That
being so, certain restrictions are essential even for
preservation of the freedom of the press itself. To
quote from the report of Mons Lopez to the Economic
and Social Council of the United Nations" If it is true
that human progress is impossible without freedom,
then it is no less true that ordinary human progress is
impossible without a measure of regulation and
discipline. It is the duty of a true and responsible
journalist to strive to inform the people with accurate
and impartial presentation of news and their views
after dispassionate evaluation of the facts and
information received by them and to be published as a
news item. The presentation of the news should be
truthful, objective and comprehensive without any
false and distorted expression."
38. The Hon‟ble Supreme Court of India in a recent case namely
Sahara India Real Estate Corporation Limited and Others vs.
Securities and Exchange Board of India & Anr. (2012) 10 SCC 603
has laid down the principles governing passing of the prior restrained
order against the publication in some exceptional cases and discussed
in detail the exceptions involved. In the said case the Supreme Court
has observed that the prior restraint of publication is not
constitutionally impermissible. In the said judgment it was observed:
"To see that the administration of justice is not
prejudiced or perverted clearly includes power of the
Supreme Court/High Court to prohibit temporarily,
statements being made in the media which would
prejudice or obstruct or interfere with the
administration of justice in a given case pending in the
Supreme Court or the High Court or even in the
subordinate Courts. In view of the judgment of this
Court in A.K. Gopalan v. Noordeen [(1969) 2 SCC
734], such statements which could be prohibited
temporarily would include statements in the media
which would prejudice the right to a fair trial of a
suspect or accused under Article 21 from the time
when the criminal proceedings in a subordinate Court
are imminent or where suspect is arrested."
"Presumption of innocence is held to be a human
right. [See : Ranjitsing Brahmajeetsing Sharma v.
State of Maharashtra (2005) 5 SCC 294]. If in a given
case the appropriate Court finds infringement of such
presumption by excessive prejudicial publicity by the
newspapers (in general), then under inherent powers,
the Courts of Record suo motu or on being
approached or on report being filed before it by
subordinate Court can under its inherent powers under
Article 129 or Article 215 pass orders of
postponement of publication for a limited period if the
applicant is able to demonstrate substantial risk of
prejudice to the pending trial and provided he is able
to displace the presumption of open Justice and to that
extent the burden will be on the applicant who seeks
such postponement of offending publication."
39. In the present case the applicant/accused apprehends prejudice
and fair deposition of the witnesses in view of the newspaper reports.
Though, neither the accused can demonstrate the actual prejudice nor
this Court can ascertain the same at this stage. Since the charges under
Section 376/377 IPC read with Section 109 IPC against the petitioner
and co-accused have been set aside by this Court in Crl.Rev.P.
305/2013 vide order dated 25.7.2013 and 22.11.2013, the Media is
restrained from reporting the matter relating to these offences.
40. With the aforesaid observations, the application stands disposed
of.
(VED PRAKASH VAISH)
JUDGE
MAY 26th , 2014
gm
